Law  in  the  Modern  State, 
by  Leon  Duguit,  Professor  of 

Law  in  the  University  of  Bordeaux. 
Translated  by  Frida  and  Harold  Laski 


New  York  fi.    W.    Huebsch  Mcmxix 


COPYRIGHT,     1919,    BY    B.    W.    HUEBSCH 
PRINTED    IN    U.S.  A 


CONTENTS 

PAGE 

TRANSLATOR'S  PREFACE .     .       vii 

INTRODUCTION ix 

AUTHOR'S  INTRODUCTION xxxv 

CHAPTER  I 
THE  ECLIPSE  OF  SOVEREIGNTY 

I.     The  Roman  Conception  of  Imperium       .... 
ii.     The   Partial   Eclipse  of   Sovereignty  in   the   Feudal 

Period;  How  It  Survived 

in.     Its  Reconstruction   as  a   Royal   Instrument  on   the 

Model  of  the  Roman  Imperium 

iv.     Theories  of  Bodin,  Loyseau,  Lebret  and  Domat  .      .         6 
v.     The  Revolution  Substitutes  the  Sovereignty  of   the 

Nation  for  the  Sovereignty  of  the  Monarch     .  10 

vi.     Criticism  of  the  Revolutionary  Dogma   ....        12 

vn.     Its  Incompatibility  with  Important  Facts       ...        15 

vni.     Particularly  with  Decentralisation  and  Federalism    .       20 

ix.     And  Its  Inability  to  Protect  the  Individual  Against 

Despotism 25 

CHAPTER  II 
PUBLIC  SERVICE 

I.     The  Theory  of  Sovereignty  Has  Thus  Broken  Down       32 
II.     Though   the  Theorists  of   Public  Law  Hesitate   to 

Admit  This 35 

in.     For  It  Has  Been  Substituted   the  Idea  of   Public 

SeVvice 39 

rv.     Which  Is  Now  the  Basis  of  Modern  Public  Law     .       44 
v.    Which  Is  Now  the  Basis  of  Modern  Public  Law     .     .  48 

iii 


4097$? 


IV  CONTENTS 

PAGE 

vi.     It  Guarantees  Regular  Supply  of  Public  Needs   (a) 

by  Privately  Exploited  Franchises 

vii.     Or  by  Their  Direction  Operation  by  Government    .       61 

CHAPTER  III 
STATUTE 

I.     The  Nature  of  Law.    Why  It  Has  the  Force  of  Com- 
pulsion.   What  Is  Meant  by  Normative  Laws    .  69 
II.     What  Is  Meant  by  Constructive  Laws     ....  74 
in.     The  Difference  Between  Laws  and  Ordinances  .      .  79 
IV.     Statutes  and  the  Theory  of  Administration  ...  83 
v.    The  Theory  and  Its  Case-Law 89 

CHAPTER  IV 
SPECIAL  STATUTES 

I.  Local  Acts 96 

n.  Bye-Laws  of  Decentralised  Authorities     .      .      .      .  101 

in.  Disciplinary   Regulations 105 

IV.  Rules  of  Voluntary  Associations Ill 

V.  Statutory  Agreements:  (a)  Collective  Contracts       .  118 

VI.  Statutory   Agreements:    (b)    Franchises    in    Private 

Hands 122 

vii.  The  Sanction  of  Statutory  Agreements     .      .      .      .  125 

VIII.  The  Forces  Which  Compel  Obedience  to  Them      .  128 

CHAPTER  V 
ADMINISTRATIVE  ACTS 


I.  Sovereign  and  Non-Sovereign  Acts 134 

ii.  Disappearance  of  This  Distinction      .....  138 

in.  The  True  Nature  of  Administrative  Acts       .      .      .  142 

IV.  The  State  and  Its  Contracts 146 

V.  The  Ordinary  Business  of  Administration      .      .      .  150 

vi.  Its  Relation  to  the  Courts 151 

vii.  Comparison  with  Other  Countries      ....  158 


CONTENTS  V 

CHAPTER  VI 
THE  BORDERLINE  OF  ADMINISTRATIVE  LAW 

PAGE 

I.     The  Origin  of  the  Theory  of  Ultra  Vires      .      .      .  164 

ii.     The  State  in  the  Courts     ........  169 

in.     Method  of  Attacking  the  State 172 

iv.     Abolition  of  Its  Special  Privilege 178 

v.     Abuse  of  Power  and  Its  Legal  Prohibition     .      .      .  184 

vi.     Discussion  of  Some  Decisions  of  the  Courts  .      .      .  191 

CHAPTER  VII 
RESPONSIBILITY 

I.     The  Irresponsible  State 197 

II.     The  Turning-Point  in  Its  Evolution 203 

in.     Parliamentary  Responsibility 207 

iv.     Parliamentary  Responsibility 213 

V.     Judicial  Responsibility 218 

vi.     The  Responsibility  of  the  Civil  Service     ....  223 

vii.     Governmental  Responsibility  for  Ordinances       .      .  230 

VIII.     Governmental  Responsibility  for  the  Police  .      .      .  235 

ix.     Private  Responsibility  of  the  Civil  Service    .      .      .237 

CONCLUSION 243 

BIBLIOGRAPHICAL  NOTE 247 


TRANSLATOR'S    PREFACE 

THE  translation  of  this  book  is  the  joint  work  of  my 
wife  and  myself;  for  the  introduction,  I  am  alone 
responsible.  I  have  to  thank  the  editors  of  the  Har- 
vard Law  Review  for  permission  to  reproduce  cer- 
tain passages  from  an  article  of  mine  in  that  period- 
ical, and  M.  Duguit  for  his  generous  willingness  that 
I  should  add  a  few  notes  where  they  appeared  likely 
to  assist  the  general  reader.  For  myself,  I  should 
like  to  add  that  my  wife  has  borne  by  far  the  greater 
share  in  the  labour  of  translation. 

H.  J.  L. 


vu 


INTRODUCTION 


THIS  volume  would  hardly  have  needed  an  intro- 
duction had  the  general  attitude  it  represents  been 
at  all  widely  known  in  English-speaking  countries. 
But  continental  theories  of  jurisprudence  have  not 
found  a  generous  welcome  where  the  writs  of  com- 
mon law  have  established  their  dominion.  Notable 
comment,  indeed,  there  has  been ;  above  all,  as  when 
Mr.  Justice  Holmes  and  the  late  Professor  Maitland 
showed  us  how  wide  must  be  our  search  if  we  would 
discover  the  roots  of  our  law.  But  just  as,  on  the 
continent  of  Europe,  English  jurisprudence  has 
meant  little  more  than  an  odd  reference  to  Austin, 
and  a  partisan  perversion  of  Sir  Henry  Maine,  so, 
amongst  ourselves,  names  that  symbolize  great  dis- 
cussion abroad — Eugen  Ehrlich,  Duguit,  Stammler, 
Geny — remain  but  little  known.  An  effort,  indeed, 
has  been  nobly  made  to  apply  what  seems  most  per- 
manent in  their  teaching  to  the  fundamental  prin- 
ciples of  Anglo-American  law;  and  it  is  probable 
that  the  historian  of  the  next  age  will  regard  the  work 
of  Dean  Pound  as  an  epoch  in  our  jurisprudence. 
But  this  is  a  movement  still  in  its  first,  fitful  begin- 
nings; and  it  is  perhaps  worth  while  to  emphasize 


IX 


X  INTRODUCTION 

some  of  the  more  notable  theories  set  forth  in  this 
book. 

And  first  of  its  perspective.  We  seem  on  the 
threshold  of  a  new  political  synthesis.  The  move- 
ment towards  what  is  vaguely  called  the  socialization 
of  law  is,  in  fact,  symptomatic  of  something  far 
deeper  and  wider  in  its  bearings.  Distinguished 
thinkers  all  over  the  world  have  not  hesitated  to  ex- 
amine with  scant  respect  the  traditional  theory  of 
representative  government.  Psychologists  like  Mr. 
Graham  Wallas,1  sociologists  like  M.  Emile  Durk- 
heim,2  political  theorists  like  Mr.  Ernest  Barker,3 
publicists  like  Mr.  Herbert  Croly4  and  Sir  Sidney 
Low,5  are  all  of  them  insistent  that  the  classic  defence 
of  representative  government — in  the  main,  a  prod- 
uct of  the  Benthamites — has  broken  down.  The 
great  society  has  outgrown  the  mould  to  which  the 
nineteenth  century  would  have  fashioned  it.  The 
life  of  the  community  can  no  longer  be  contained  in, 
or  satisfied  with,  its  merely  political  achievement. 
It  is  not  so  much  the  general  content  of  our  ideals 
that  has  been  called  into  question.  Rather  has  a 
grave  doubt  been  raised  whether  the  present  mecha- 

*Cf.  his  Human  Nature  in  Politics  (1908). 

2  Cf.  his  contribution  to  the  Lib  res  Entretiens    (4me  serie) 
1906. 

3  Cf.  his  article,  The  Discredited  State,  in  the  Political  Quar- 
terly for  Feb.,  1915. 

4  Cf.  his  Promise  of  American  Life  (1904)  ;  Progressive  Dem- 
ocracy (1915). 

5  Cf.  his  Governance  of  England  (revised  ed.,  1914). 


INTRODUCTION  XI 

nisms  of  politics  are  likely  to  take  us  much  further  in 
the  direction  of  their  attainment. 

It  was  inevitable  that,  sooner  or  later,  this  scepti- 
cism should  penetrate  the  sphere  of  jurisprudence; 
and,  since  it  was,  above  all,  the  effort  of  Revolution- 
ary France  which  outlined  the  character  of  the  mod- 
ern state,  it  was  in  some  sort  fitting  that  in  France 
again  the  attempt  to  undermine  its  foundations 
should  have  been  begun.  The  national  sovereignty 
which  Rousseau  made  the  central  dogma  of  modern 
politics  meant,  so  soon  as  the  working  class  became 
articulate,  an  immense  increase  of  governmental 
functions;  and  in  a  country  which,  like  France,  still 
retains  the  large  outlines  of  Napoleon's  administra- 
tive settlement,  this  has  meant  a  centralization  such 
as  the  traditional  localism  of  England  and  America 
can  hardly  understand.  Hence,  of  course,  the  re- 
volt against  etatisme  which,  in  its  broad  perspective, 
seems  to  have  arisen  about  the  time  of  the  Dreyfus 
case.6  The  republic  did  not  emerge  unscathed  from 
that  tremendous  ordeal.  It  had  to  turn  its  hand  to 
the  overwhelming  labours  involved  in  a  general  law 
of  associations,  on  the  one  hand,  and  the  separation 
of  church  and  state  on  the  other.  But,  even  then,  its 
difficulties  had  hardly  begun. 

The  general  democratic  movement  had  left  un- 
touched the  whole  process  of  administration.7  Its 
hierarchical  organisation  was  inherited  directly  from 

*.Cf.  Daniel  Halevy,  Apologia  Pour  Notre  Passee  (1910). 
7  Cf.  Laski,  Authority  in  the  Modern  State,  chap.  v. 


xii  INTRODUCTION 

the  anclen  regime,  and  Napoleon  did  no  more  than 
make  it  efficient.  The  result  was  to  leave  the  civil 
service  at  the  mercy,  directly,  of  the  minister  and, 
indirectly,  of  the  deputy  who  had  favours  to  bestow 
and  candidates  for  their  reception.  The  law  of  as- 
sociations, passed  under  the  aegis  of  M.  Waldeck- 
Rousseau,  strengthened  a  movement  towards  trade- 
unionism  in  the  civil  service  which,  though  earlier  in 
origin,  did  not  become  effective  until  the  protection 
therein  offered  by  the  law  opened  up  a  profitable 
avenue  of  effort.  The  outstanding  event  in  the  dec- 
ade between  the  separation  and  the  war  has  been  the 
challenge  issued  to  the  sovereignty  of  the  state  by  its 
own  servants.  They  claimed  the  right  to  protect 
themselves  against  its  arbitrary  acts.  They  de- 
manded power  to  maintain  their  professional  inter- 
ests and  standards  exactly  as  the  workers  in  an  ordi- 
nary trade.  If  they  did  not  obtain  all  they  desired 
they  received,  at  any  rate,  immense  concessions. 
They  revealed  the  growth  of  what  M.  Paul-Boncour 
has  happily  termed  economic  federalism — the  desire 
of  each  industrial  and  professional  group  to  render 
itself,  for  all  internal  purposes,  an  autonomous  unit. 
It  was  a  movement  which  essentially  implied  admin- 
istrative decentralisation.8  The  effort  of  the  state 
might  be  unified,  but  its  methods  of  attainment  could 
be  various.  And  it  became  more  than  doubtful 
whether,  in  the  new  synthesis  such  decentralisation 

8  For  an  important  criticism,  however,  see  Dicey,  Law  of  the 
Constitution  (8th  ed.),  p.  134f. 


INTRODUCTION  xiii 

involved,  the  sovereign  state  of  the  nineteenth  cen- 
tury would  not  be  superfluous. 

Hardly  less  significant  was  the  development  of 
French  trade-unionism.9  The  workers  deserted  the 
ideal  of  Marx,  whose  purpose  was  the  capture  of  the 
bourgeois  state,  and  went  back  to  the  theories  of 
Proudhon,  who  denied  altogether  its  validity?*  x]Jt 
is  probable  that  we  have  been  greatly  misled  by  tri£ 
attractive  glamour  which,  in  this  connection,  attaches 
to  the  work  of  Sorel  and  Berth.  The  real  syndical- 
ist movement  is  to  be  found  in  the  workshops  them- 
selves, and  in  the  effort  of  men  like  Pelloutier  and 
Griffuehles  to  develop  a  complete  economic  and  so- 
cial life  for  the  worker  outside  the  traditional  cate- 
gories of  the  state.  Political  action  has  not  been  so' 
much  despised  as  ignored.  The  French  chamber 
has  been  regarded  as  simply  irrelevant.  Whatever 
its  pretensions,  the  Revolutionary  state  has  been  dis- 
missed as  an  institution  doing  for  the  commercial 
middle  class  what  feudalism  achieved  for  the  land- 
owning aristocracy.  Its  sovereign  power  has  been 
simply  the  most  effective  weapon  by  which  it  has 
served  its  purposes.  The  significance  of  the  return 
to  Proudhon  lies  in  the  fact  that  he  sought  in  a  fed- 
eralist organisation  of  society  the  clue  to  freedom. 
He  understood,  as  Marx  never  understood,  that  the 

9  The  best  account  is  in  L.  Levine,  Labor  Movement  in  France 
(1912). 

10  Cf.    Pirou,    Proudhon   et    le   Syndicalisme   Revolution naire 
(1911). 


XIV  INTRODUCTION 

root  of  the  industrial  problem  lies  less  in  an  indig- 
nant sense  of  exploitation  than  in  a  eagerness  to 
share  in  the  determination  of  worl  ^  conditions. 
He  gave  no  quarter  to  the  nationalise  i  which  was 
the  result  of  Marx's  teaching.  Ratl  did  he  insist 
that  only  by  the  destruction  of  the  itralised  bu- 
reaucracy created  by  the  Revolution  <.  aid  freedom 
become  effective.  He  grasped,  in  L.Ct,  what  has 
been  the  main  motive  to  combat  in  the  ideals  of  mod- 
ern French  trade-unionism. 

Two  other  streams  of  thought  are  hardly  less  im- 
portant. The  decline  of  parliamentary  government 
in  France  is,  of  course,  only  part  of  the  general  bank- 
ruptcy which  confronts  the  representative  system 
completed  by  the  nineteenth  century.11  Its  evils 
have  in  France  been  perhaps  more  strikingly  appar- 
ent than  elsewhere;  and  the  failure  of  any  govern- 
ment to  give  serious  attention  to  the  necessary  admin- 
istrative reforms  has  led  to  more  than  one  serious 
crisis.  Not,  indeed,  that  the  general  atmosphere  of 
scepticism  has,  in  any  general  fashion,  led  men  away 
from  the  republic;  but  it  has  served  to  demonstrate 
the  necessity  of  searching  out  new  sources  of  politi- 
cal method  and  insight.  The  second  stream  is  re- 
lated to  this  necessity,  though  it  is  historically  far 
older.  What  is  termed  regionalism  is,  under  a  va- 

11  Cf.  Guy-Grand,  Le  Proces  de  la  Democratic.  Wallas,  Hu- 
man Nature  in  Politics,  Introduction.  I  may  perhaps  refer  to  m> 
Problem  of  Administrative  Areas,  Smith  College  Studies,  Vol.  IV, 
No.  1,  for  a  discussion  of  the  technical  problem  involved. 


INTRODUCTION  XV 

riety  of  forms,  simply  a  protest,  which  goes  back  to 
the  federal  theories  of  the  Girondins,  against  the 
absorptiveness  of  Paris.  That,  as  Lamennais  ob- 
served seventy  years  ago,  causes  "paralysis  at  the  ex- 
-tremities  and  Apoplexy  at  the  centre."  It  is  a  move- 
ment which  &  ^ks  the  reconstitution  of  French  local 
life  under  £<its  most  varied  aspects.  It  refuses  to 
accept  as  adequate  any  administrative  reform  which 
merely  aims  at  deconcentration.  Whether  it  seeks 
the  reconstruction  of  the  ancient  provinces,  the  crea- 
tion of  entirely  new  areas  of  administration,  the  use 
rather  of  professional  than  of  territorial  groupings, 
every  section  of  the  movement  is  determined  that  the 
Napoleonic  completion  of  the  an  den  regime  must 
disappear.12 

Lastly,  it  is  important  to  remember  the  legal  back- 
ground in  which  these  varied  forces  have  been  work- 
ing. The  traditional  theory  of  the  state  made  it  the 
effective  guardian  of  public  order  and  gave  to  it  the 
weapon  of  sovereignty  that  it  might  achieve  its  pur- 
poses. By  sovereignty  was  largely  meant  the  right  to 
act  without  being  called  to  answer  for  such  policy  as 
it  might  consider  essential  to  its  aims.  It  was  re- 
garded as  a  person,  with  the  significant  limitation 
that  the  possession  of  its  rights  did  not  involve,  save 
as  an  act  of  grace  upon  its  own  part,  an  assumption 
of  proportionate  legal  responsibility.  In  England, 
for  example,  the  Crown  can  not  be  sued  save  by  per- 

12  Cf.  Charles  Brun,  Le  Regionalisme  (1911) — the  highest  au- 
thority upon  this  subject. 


xvi  INTRODUCTION 

mission  of  the  Attorney-General.  All  sorts  of  limi- 
tations surround  the  effort  to  sue  the  American  state; 
though  certain  constitutional  guarantees,  and  notably 
the  fifth  and  fourteenth  amendments,  have  been  in- 
tended to  limit  state-omnicompetence.  In  France 
and  Germany,  the  performance  of  public  functions 
acted  as  a  release  from  ordinary  legal  responsibility. 
The  divine  right  of  the  monarch  seemed,  by  the  con- 
venient fiction  of  national  sovereignty,  to  be  trans- 
formed into  what,  if  not  by  definition  then  certainly 
in  result,  is  the  divine  right  of  the  state. 

II 

In  such  an  atmosphere,  it  is  against  this  theory  of 
the  sovereign  state  that  M.  Duguit's  work  has  been  a 
magistral  protest.  His  earliest  book  remains  its  full- 
est exposition.13  In  a  treatise  on  constitutional  law 
which,  in  the  breadth  of  its  analysis,  challenges  com- 
parison with  Esmein's  almost  incomparable  study,  he 
has  traced  its  ramifications  through  the  field  best 
fitted  to  display  its  import.14  In  three  lectures  at  the 
Ecole  des  Hautes  Etudes  Sociales,  he  has  effectively 
summarised  their  bearing.15  The  volume  here  trans- 
lated relates  his  theories  to  the  whole  course  of  mod- 
ern public  law,  and  is,  perhaps,  the  best  summary  of 
their  general  result. 

The  starting-point  of  M.  Duguit's  attitude  is,  in 

13  L'Etat,  2  vols.  (1901-3). 

14Traite  de  Droit  Constitutionnel  (1911). 

15  Le  Droit  Social,  Le  Droit  Individuel,  et  L'Etat  (1908). 


INTRODUCTION  xvii 

reality,  a  sociological  interpretation  of  the  state.  He 
does  not  discuss  the  philosophic  background  of  law, 
and  has  been,  indeed,  somewhat  unduly  contemptu- 
ous of  all  legal  metaphysics.  He  starts  from  the  ob- 
vious fact  of  social  interdependence.  We  are  mem- 
bers one  of  another.  Observation  reveals  to  us  a 
mass  of  individuals,  each  with  his  own  part  to  play 
in  the  world.  Social  life  is  constituted  by  the  inter- 
relation of  those  functions.  This  fusion  of  teleolo- 
gies suggests,  each  in  its  due  context,  general  prin- 
ciples of  social  conduct.  Collectively,  they  repre- 
sent what  we  are  accustomed  to  term  the  moral  code ; 
and  law  is  simply  the  sum  of  those  principles  within 
that  code  which  have  won  a  general  legal  sanction 
because  they  are  necessary  to  the  achievement  of  the 
social  purpose. 

This  rule  of  law  is,  clearly,  independent  of  the 
state,  and,  indeed,  anterior  to  it;  for  it  is  the  principle 
on  which  the  life  of  society — far  vaster  in  extent  than 
the  state— depends.  It  is  imposed  on  private  per- 
sons, either  by  their  compulsory  co-operation  to 
achieve  the  fullness  of  social  solidarity,  or  by  their 
prevention  from  performing  such  acts  as  might  pre- 
vent any  individual  from  contributing  his  utmost  to 
the  common  good.16  It  is  imposed  upon  public  per- 
sons, even  more  than  upon  private,  because  their  sit- 
uation makes  incumbent  upon  them  a  greater  sense 
of  their  responsibility  for  its  realisation.  These  pub- 

16  Cf.  Bosanquet,  Philosophical  Theory  of  the  State  (1909), 
p.  187f. 


XVlll  INTRODUCTION 

lie  persons  are,  in  their  totality,  what  we  call  govern- 
ment; for,  to  M.  Duguit,  a  state  is  simply  a  society 
divided  into  government  and  subjects.  It  would, 
then,  be  clearly  absurd  if  the  more  important  posi- 
tion of  government,  relative  to  the  general  social  end, 
did  not  involve  greater  responsibility  for  that  end. 

What,  then,  is  the  function  of  government?  By 
legislation,  it  lays  down  the  principles  by  which  the 
rule  of  law  is  to  be  attained;  by  administration,  it 
translates  into  effective  terms  those  principles  thus 
made  into  statutes.  Certain  things,  obviously,  it 
must  recognise.  It  must  respect  the  equality  of  men ; 
by  which  is  meant,  not  their  identity,  but  the  general 
needs  common  to  them  all,  of  which  food  and  shelter 
are  the  most  obvious  instances.  It  must  not  place 
hindrances  in  the  way  of  each  man's  development, 
save  in  the  protection  of  the  common  freedom.  It 
must,  for  example,  allow  him  freedom  of  thought,  of 
instruction,  and  of  religion,  because  experience  has 
shown  that,  without  these,  individuality  is  stunted. 
It  must  not,  similarly,  impose  on  any  persons  a  sys- 
tem of  caste.  It  must  declare  nugatory  any  individ- 
ual act  which  is  antithetic  to  its  rule  of  law.  If,  for 
example,  experience  has  shown  that  the  use  of  cer- 
tain materials  in  industry  is  dangerous  to  the  health 
of  those  therein  employed,  it  is  the  duty  of  govern- 
ment to  prohibit  that  use.17  Above  all,  since  these 

17  On  the  growth  of  governmental  power  with  new  social  ex- 
perience cf.  the  observations  of  Mr.  Justice  Holmes  in  Noble  State 
Bank  v.  Haskell,  219  U.  S.,  104. 


INTRODUCTION  XIX 

duties  are  often,  for  a  variety  of  causes,  likely  to  be 
unfulfilled,  or,  at  least,  but  partially  performed,  the 
government  should  organise  securities  that  can  be 
used  by  the  private  citizen  to  compel  their  enforce- 
ment. If  this  negligence  continues,  the  right  of  in- 
surrection necessarily  remains  as  the  ultimate  reserve 
power. 

In  such  an  attitude  we  have  all  the  materials  for  a 
theory  of  the  state.  Experience  is  to  suggest  a  rule 
of  right  conduct,  and  the  aim  of  the  state  is  its  reali- 
sation. The  state  is  beneath  the  law;  for,  by  its  very 
definition,  it  is  an  instrument  and  not  an  end.  Nor  is 
that  rule  of  conduct  unchanging;  for  it  is  clear  that 
it  must  relate  itself  to  the  peculiar  circumstances  of 
each  environment  in  each  age.  But  it  is  to  be  noted 
that  the  conclusions  annexed  to  this  statement  are  not 
less  radical.  M.  Duguit  denies  at  once  the  sov- 
ereignty and  the  personality  of  the  state.  He  denies 
its  sovereignty,  in  the  main,  on  the  ground  that  its 
assertion  is  no  longer  consonant  with  the  facts; 
though,  indeed,  his  attitude  follows  logically  from  his 
affirmation  that  the  needs  of  the  rule  of  law  are  alone 
supreme. %  He  denies  its  personality  because  he  is  de- 
termined to  be  relentlessly  realistic  in  his  analysis. 
The  action  of  the  state  means,  in  cold  fact,  simply 
that  certain  officials  have  carried  out  the  order  of  a 
minister;  there  is  nothing  in  that  which  gives  use  to 
any  personality  differing  from  that  of  those  con- 
cerned in  the  conception  and  performance  of  the  or- 
der. It  is  true  that  the  officials  have  wider  powers 


XX  INTRODUCTION 

than  the  average  citizen ;  but  that  does  not  make  their 
acts  in  substance  different. 

/  This  denial  of  sovereignty  may  be  arrived  at  in 
another  way.  Sovereignty  is  born  of  rights.  M. 
Duguit,  in  substance,  denies  all  rights,  and  insists 
simply  upon  the  existence  of  duties.  Each  of  us  has 
certain  functions  to  perform,  born  of  our  position  in 
society.  Our  duty  is  to  perform  those  functions. 
Sovereignty  would  mean  the  unlimited  and  irrespon- 
sible will  of  those  who  exercise  it;  but  they  are,  in 
strict  fact,  limited  by  the  purpose  it  is  to  serve.  They 
have  power  for  their  special  function,  and  no  more. 
Obviously,  then,  that  power,  being  always  relative, 
cannot  be  spoken  of  in  terms  implying  either  lack  of 
limitation  or  responsibility.  Everything  is  subject 
to  the  rule  of  law. 

What,  then,  is  the  state  in  fact  performing?  Its 
function  is  to  provide  for  certain  public  needs  which 
are  growing  each  day  more  varied,  more  imperative 
and  more  numerous.  The  whole  theory  of  the  state, 
indeed,  is  contained  in  the  idea  of  public  need.  It  is 
the  performance  by  the  mass  of  officials  of  their  so- 
cial function — the  part  assigned  to  them  in  that  di- 
vision of  labour  from  which  the  ideal  of  social  soli- 
darity is  born.  A  statute  is  simply  the  legislative  set- 
tlement of  such  a  function — the  determination  that 
some  public  need  shall  be  served  by  government  in  a 
certain  fashion.  Administrative  acts  are  simply  the 
]  fulfilment  of  the  statute — the  creation  of  a  special  sit- 
luation  corresponding  to  the  social  need  therein  satis- 


INTRODUCTION  XXI 

fied.  These  are  not  political  in  character — that  is 
rather  their  corruption.  They  are  simply  technical 
operations  which,  like  any  other  social  act,  are  sub- 
mitted, for  their  general  validity,  to  the  rule  of  law 
whence  their  necessity  is  ultimately  derived. 

In  such  an  aspect  it  is  obvious  that  the  state  is  re- 
duced to  the  position  of  a  private  citizen,  since,  like 
the  latter,  it  is  brought  within  the  scope  of  an  objeg- 
tive  law.  That  reduction  necessarily  involves  the 
notion  _of  a  full  responsibility  for  its  acts ;  and  M. 
Duguit  has  been  quick  to  note  how  therecent  juris- 
prudence of  the  Conseil  d'Etat  is  extending  on  every 
hand  the  idea  of  state-responsibility.18  It  is,  how- 
ever, a  doctrine  that  makes  against  authoritarianism. 
The  only  justification  for  any  public  act  is  that  its 
result  in  public  good  should  be  commensurate  with 
the  force  that  is  involved  in  its  exercise;  but  that, 
after  all,  is  ultimately  a  matter  for  the  private  judg- 
ment of  each  one  of  us.  A  real  impetus  is  thus  given 
to  the  initiative  of  the  private  citizen.  Room  is  left 
for  that  reservoir  of  individualism  upon  which,  in 
the  last  resort,  the  welfare  of  society  depends.  No 
act,  in  his  view,  draws  its  justification  from  the  fact 
that  it  is  the  result  of  will.  He  demands,  rather,  the 
research  of  reason  into  human  needs  and  makes  the 
Tightness  of  an  act  depend  upon  an  agreement  with 
the  conclusion  of  such  enquiry. 

Three  practical  and  immediate  consequences  are 
obvious  in  such  an  attitude.  M.  Duguit  seems  clearly 

18  Cf.  chap,  vii  below. 


XX11  INTRODUCTION 

to  believe  in  the  virtue  of  a  written  constitution;  or, 
at  least,  he  emphasises  the  distinction  between  con- 
stitutional and  ordinary  legislation  which  is  the  main 
element  in  the  debate.  The  reason  for  this  conclu- 
sion really  goes  back  to  the  central  principle  of  his 
system;  for  the  written  constitution  is  nothing  so 
much  as  an  attempt  to  make  the  fundamental  notions 
of  its  contrivers  beyond  the  reach  of  ordinary  legis- 
lative change.  It  logically  follows,  therefore,  that 
he  should  not  merely  emphasise  the  value  of  judicial 
review  of  executive  acts,  but  should  seek  to  extend 
that  control  to  the  policy  of  the  legislature.  It  is  a 
policy  still  far  distant;  in  the  House  of  Commons, 
certainly,  it  has  been,  in  the  last  decade,  decisively 
rejected.19  Judicial  Review  in  America  has  been,  of 
course,  since  Marbury  v.  Madison™  the  corner-stone 
of  the  constitutional  edifice.  It  is  yet  interesting  to 
note  that  its  main  tendency,  in  recent  years,  has  been 
to  defeat  the  progress  of  exactly  the  type  of  measure 
upon  the  desirability  of  which  M.  Duguit  would 
himself  probably  lay  the  gravest  emphasis.21  It  has 
led  to  acrimonious  discussion,  in  which  a  former 
president  was  led  to  urge  the  need  for  a  recall  of  ju- 
dicial decisions  by  popular  vote  22 ;  and  the  most  emi- 

19  Hansard,  5th  series,  1912,  vol.  42,  p.  2229.     Speech  of  Mr. 
Asquith, 

20  For  a  full  account  cf.  Beard,  The  Supreme  Court  and  the 
Constitution. 

21  Cf.  Frankfurter,  Hours  of  Labour  and  Realism  in  Constitu- 
tional Law,  in  Harv.  L.  Rev.,  Vol.  29. 

22  Cf.  Brooks  Adams,  Theory  of  Social  Revolutions,  chap.  i. 


INTRODUCTION  xxiii 

nent  of  American  judges  since  the  classic  time  of 
Marshall  and  Story  has  told  us  that  he  would  see  the 
disappearance  of  the  power  over  Congressional  leg- 
islation without  regret.  This  is  said,  not  so  much  in 
criticism  of  M.  Duguit,  as  to  indicate  the  presence  of 
a  difficulty  in  the  face  of  legislative  acts  that  is  per- 
haps absent  when  executive  policy  is  considered.  It 
is,  moreover,  clear  that  in  such  a  system  the  person- 
nel of  the  courts  raises  grave  problems.  A  foreigner 
in  the  United  States  cannot  but  observe  with  the 
deepest  wonder  how  eagerly  possible  nominations 
for  a  vacant  position  on  the  Supreme  Court  are  can- 
vassed.23 That  is  not  merely  true  of  the  present  time. 
From  the  period  when  Marshall  assumed  the  chief 
justiceship  to  the  Civil  War,  practically  every  serious 
political  issue  has  sooner  or  later  come  to  the  Su- 
preme Court  for  decision;  and  the  method  in  which 
the  United  States  became  transmuted  from  a  pioneer 
civilisation  into  the  modern  and  positive  state  has 
largely  been  determined  by  the  interpretation  placed, 
since  the  Slaughter-House  Cases,  upon  the  meaning 
of  the  Fourteenth  Amendment.24  Obviously,  there- 
fore, the  issue  has  somewhat  wider  bearing  than  is 
clear  from  any  passing  analysis. 

M.  Duguit,  lastly,  has  emphasised  the  necessity  of 
readjusting  the  theory  of  the  state  to  the  new  perspec- 

23  Cf.  the  immense  volume  cf.  testimony  taken  by  the  Senate 
Committee  on  the  appointment  of  Mr.  Justice  Brandeis  to  the 
Supreme  Court. 

24  Cf.  Collins,  The  Fourteenth  Amendment  and  the  States,    < 


XXIV  INTRODUCTION 

tive  given  to  it  by  the  importance  of  social  groups.25 
It  is  no  longer  possible,  as  he  thinks,  for  a  unified  di- 
rection of  the  whole,  centred  in  the  Council  of  Minis- 
ters in  Paris,  or  the  cabinet  in  London,  or,  as  in 
American  experience,  in  the  presidential  mind  alone, 
adequately  to  grapple  with  the  issues  that  confront 
us.  M.  Duguit  has  nowhere  drawn  any  full  picture 
of  the  tendency  that  is  emerging;  but  he  seems  to  in- 
cline to  an  acceptance  of  that  ideal  of  technical  au- 
tonomy for  each  special  public  utility  of  which  M. 
Leroy  has  been  the  sponsor.  x  He  seems  also,  though 
with  some  hesitation,  to  regard  the  trade-unions  as 
destined  one  day  to  form  an  integral  part  of  a  state 
federalised  not  by  regions  but  by  functions.  He  re- 
pudiates, indeed,  phenomena  like  the  class-war;  he 
does  not  admit  the  right  to  strike  in  the  case  of  men 
publicly  employed.  In  this  aspect,  it  is  perhaps 
worth  noting  that  M.  Duguit  has  been  not  a  little  in- 
fluenced by  the  contemplation  of  feudal  society. 
Class,  to  him,  means  simply  a  group  of  men  whose 
functions  have  a  specially  kindred  character26;  and 
it  is  the  function  of  such  a  class,  as  a  unit  in  relation 
to  the  whole  structure,  that  impresses  him.  This 
tends,  perhaps,  to  give  a  somewhat  static  character  to 
his  analysis  of  the  social  disintegration  that  confronts 
us;  or,  rather,  it  emphasises  more  the  fact  of  disinte- 
gration than  the  effort  of  reconstruction.  For  the 

25  Cf.  the  third  lecture  of  Le  Droit  Social,  Le  Droit  Individuel 
et  L'Etat. 

26  Cf.  Le  Droit  Social,  Le  Droit  Individuel  et  L'Etat,  p.  114, 


INTRODUCTION  XXV 

latter,  we  must  turn,  on  the  one  hand  back  to  Proud- 
hon,  and  his  almost  febrile  suggestiveness,27  on  the 
other,  to  a  host  of  men  whose  work  is,  in  reality,  noth- 
ing so  much  as  the  harvest  of  the  seed  M.  Duguit  has 
sowed. 

Ill 

It  would  be  out  of  place  here  to  attempt  anything 
like  a  detailed  criticism  of  the  theories  presented  in 
this  book.28  Nevertheless,  it  is  worth  while  to  indi- 
cate the  directions  from  which  such  criticism  has 
come.  Naturally  enough,  its  main  stream  has  been 
directed  against  M.  Duguit's  denial  of  the  sov- 
ereignty of  the  state.  M.  Esmein,  for  instance,  has 
restated  against  him  the  classic  theory  by  his  insist- 
ence that  unless  there  is,  in  each  state,  some  unchal- 

we  have  no 


effective  legal  guarantee  of  public  order.  Juristi- 
cally,  the  argument  does  not  seem  answerable;  for, 
in  the  legal  theory  of  the  state  there  must  be  some  one 
authority  beyond  appeal.  But  while  the  criticism 
has  legal  validity,  it  is,  in  sober  fact,  politically 
worthless.  The  strength,  indeed,  of  M.  Duguit's 
analysis  is  in  its  political,  rather  than  its  juristic,  ap- 
plication. So  long  as  we  are  satisfied  with  the  mere 
logic  of  a  terminology,  the  juristic  theory  of  sov- 

27  Cf.  especially,  Du  Principe  Federatif  —  one  of  the  great  books 
of  the  nineteenth  century. 

8  The  bibliography  contains  a  list  of  the  more  important  ar- 
ticles upon  his  work. 


XXVI  INTRODUCTION 

ereignty  will  remain  as  impregnable  to  assault  as  it 
is  inapplicable  to  the  facts  of  life.  For,  as  M.  Duguit 
shows,  it  is  when  we  attempt  its  test  by  its  applica- 
bility to  politics,  the  real  problem  becomes  not  so 
much  the  statement  of  authorities  as  the  measure  of 
influence.  That,  indeed,  is  the  significance  of  Pro- 
fessor Gray's  profound  observation,  that  the  real 
rulers  of  a  society  are  undiscoverable.  Certain,  at 
least,  it  is  that  they  do  not  coincide  with  the  ordinary 
theory  of  jurisprudence. 

More  vital  is  the  criticism  that  M.  Duguit  has  not, 
as  he  assumes,  suppressed  in  his  system  the  idea  of 
subjective  law.  The  test  of  legal  validity  is,  it  is 
true,  made  the  objective  interpretation  of  the  facts  of 
life.  But  there  is  not  anything  like  the  unanimity 
of  agreement  as  to  the  meaning  of  those  facts  which 
is  implied  in  the  assumption  of  unanimity.  The 
nineteenth  century,  to  take  a  single  example,  is  essen- 
tially the  period  in  which  the  fundamental  content  of 
the  democratic  hypothesis  was  elaborated ;  but  an  hy- 
pothesis which,  in  England  alone,  aroused  eager  and 
serious  criticism  from  such  minds  as  Fitzjames 
Stephen,  Bagehot,  Maine  and  Lecky,  in  a  single  gen- 
eration, can  hardly  claim  objectivity  with  any  seri- 
ousness. The  fact  surely  is  that  the  notion  of  each 
one  of  us  of  what  does  represent  the  social  need  will 
so  differ  as  merely  to  transfer  the  subjectivity  in- 
volved from  the  order  issued  by  the  ruling  officials 
to  the  judgment  upon  the  validity  of  that  order  by 
the  subjects  who  receive  it. 


INTRODUCTION  XXVll 

So  too,  it  may  be  suggested,  with  M.  Duguit's  de- 
nial of  the  existence  of  rights.  He  urges  that  the  sole 
fact  upon  which  a  theory  of  the  state  can  usefully  be 
built  is  the  fact  of  social  interdependence;  and  from 
that  tissue  of  relationships  he  postulates  a  system  of 
duties  for  each  of  us  relative  to  the  function  that  is 
our  lot.  That  clearly  involves,  however,  the  exist- 
ence of  such  a  social  organisation  as  permits  the  full 
development  of  our  capacity  for  that  purpose;  and 
this,  of  course,  involves  the  condemnation  of  much 
of  the  present  social  order.  But,  if  this  bows  out 
rights  at  the  front  door,  it  is  only  to  admit  them  again 
at  the  back;  for  if  our  virtue  is  thus  to  be  what  T.  H. 
Green  called  our  positive  contribution  to  social  good, 
obviously  we  must  demand,  have  the  right  to  demand, 
that  nothing  shall  hinder  the  performance  of  our 
service.  We  can  even  make  a  catalogue  of  the  needs, 
physical  or  moral  or  political,  we  require  to  be  ful- 
filled if  that  service  is  to  be  adequate ;  and  such  needs, 
whether  or  no  we  call  them  rights,  will,  in  point  of 
hard  fact,  represent  substantially  the  same  thing.29 
M.  Duguit's  criticism  of  rights,  in  brief,  is  applicable 
against  the  ascription  to  them  of  something  eternal 
and  imprescriptible;  but  it  is  hardly  valid  as 
against  a  theory  of  "natural  law  with  changing  con- 
tent" such  as  that  for  which  Stammler  stands  as 
sponsor. 

What,  indeed,  as  M.  Geny  has  acutely  pointed 

29  Cf.  W.  Wallace,  Our  Natural  Rights,  in  his  Lectures  and 
Essays;  and  Laski,  Authority  in  the  Modern  State,  chap.  i. 


XXVlll  INTRODUCTION 

out,30  is  needed  in  M.  Duguit's  system  is  less  the  sci- 
entific denial  of  any  metaphysic  than  the  admission 
of  the  metaphysic  in  reality  implied  therein.  For 
his  refusal  to  take  much  heed  of  philosophic  jurispru- 
dence he  has,  indeed,  support  so  distinguished  as 
that  of  Mr.  Justice  Holmes,  who  seems  to  regard 
ideas  of  right  and  wrong  as  nothing  more  than  de- 
sires that  are  based  upon  the  verdict  of  a  transient 
majority.31  Such  scepticism,  it  may  be  suggested, 
does  not  in  reality  meet  the  point  against  which  it  is 
postulated.  The  modern  theory  of  natural  law,  with 
the  ethical  and  psychological  assumptions  upon 
which  it  is  based,  does  not  lay  down  any  eternal  or 
immutable  laws  of  human  conduct;  it  simply  urges 
that  the  research  of  reason  cannot  help  reaching  con- 
clusions which  are  valid  so  long  as  the  conditions 
they  resume  obtain.  Such  a  generalisation  must  be 
the  necessary  basis  of  all  political  action ;  for  a  scepti- 
cism which  refused  to  act  except  in  the  presence  of 
mathematical  certitude  would  never  act  at  all.  Nor 
is  it  necessary  to  depreciate  the  large  number  of  cases 
in  which  unanimity  is  reached  in  the  ascription  of 
good.  A  legal  metaphysic  such  as  that  of  Cathrein, 
who  defines  the  ends  of  law  in  terms  of  the  theology 
of  a  specific  church,  may  well  be  capable  of  imme- 
diate refutation;  but  a  metaphysic  which  is  at  once 

30  Science  et  Technique  en  Droit  Prive,  Vol.  II,  p.  114. 

31  See  his  eloquent  attack  in  the  Harvard  Law  Review  for  No- 
vember, 1918. 


INTRODUCTION  XXIX 

empirical  and  pragmatic,  seems  necessary  to  the  func- 
tioning of  any  legal  system.  It  is,  in  fact,  no  more 
than  the  teleology  by  reason  of  which  it  is  existent. 

Sovereignty  apart,  the  main  burden  of  the  criti- 
cism M.  Duguit  has  encountered,  has  centred  about 
his  denial  of  corporate  personality.  Where,  indeed, 
as  with  M.  Esmein,  the  doctrine  is  held  as  being  no 
more  than  a  fiction,  the  controversy  is  no  more  than 
a  debate  about  its  convenience.  But  with  those  who 
hold  the  doctrine  in  a  wider  form  the  issue,  of  course, 
goes  deeper;  for,  at  bottom,  as  Mr.  Barker  has 
pointed  out,  the  real  problem  is  the  philosophic  na- 
ture of  universals,  and  goes  back  almost  to  the  origins 
of  thought.  Here,  it  may  perhaps  suffice  to  say  that 
the  way  in  which  the  problem  is  to  be  regarded  has 
not,  on  the  continent,  been  stated  in  its  most  useful 
form.  Anglo-Saxon  jurisprudence  has  been  fortu- 
nate in  that  its  definition  has  come,  not  merely  from 
one  of  the  most  distinguished,  but  also  from  one  of 
the  most  practical-minded  of  lawyers.  "Whenever 
men  act  in  concert  for  a  common  purpose,"  Professor 
Dicey  has  written,32  "they  tend  to  create  a  body 
which,  from  no  fiction  of  law,  but  from  the  very  na- 
ture of  things,  differs  from  the  individuals  of  whom 
it  is  constituted."  The  nature  of  that  body  is  essen- 
tially a  metaphysical  enquiry;  but  that  we  are  deal- 
ing with  an  activity  that  is  unified,  and  must,  there- 
fore, as  a  unity,  be  made  responsible,  no  one  who  is 

32  Law  and  Opinion  in  England  (2nd  ed.),  p.  154, 


XXX  INTRODUCTION 

conversant  with  the  facts  can  for  a  moment  dispute.33 
M.  Duguit,  certainly,  does  not  deny  it;  for  the  admis- 
sion is  involved  in  the  urgency  with  which  he  insists 
upon  collective  responsibility.  He  is,  indeed,  hap- 
pily free  from  that  sterile  system  of  enquiry  which 
enabled  von  Bliintschli  to  endow  associations  with 
sexual  characteristics,  or  has  enabled  a  generation  of 
German  students  to  search  for  the  exact  place  of  resi- 
dence of  the  corporate  will.  It  is  better,  for  the  pur- 
poses of  practical  jurisprudence,  to  deal  rather  with 
the  external  results  of  action  than  their  inner  nature; 
and  in  that  sense,  certainly,  the  result  of  a  system  so 
different  from  M.  Duguit's  as  that  of  Michoud,34 
will,  ultimately,  be  found  to  have  similar  conse- 
quence. 

IV 

Lastly,  it  may  be  worth  while  to  point  out  the  in- 
tellectual affiliations  of  M.  Duguit  in  England  and 
America.  In  England,  for  the  most  part,  those  ideas 
which  approximate  to  his  own  have  not  come  from 
the  lawyers.  The  course  of  legislation,  indeed,  has 
for  the  past  decade  set  in  a  definitely  collectivist  di- 
rection ;  and  Professor  Dicey  has  noted  in  the  concur- 
rent revival  of  the  idea  of  natural  law  a  phenomenon 
of  which  the  results  are  not  very  different  from  those 
to  which  M.  Duguit  looks  forward.35  From  this 

33  Cf.  for  the  injustice  that  otherwise  results,  an  article  on  the 
personality  of  associations  in  29  Harv.  L.  Rev.,  404. 
34Theorie  de  la  Personnalite  Morale,  1906-9. 
35  Law  of  the  Constitution  (8th  ed.)>  p.  xxxviii. 


INTRODUCTION  Xxxi 

standpoint,  the  direction  of  labour  policy  has  been 
particularly  important;  and  especially  in  its  latest 
phase  of  what  is  called  gild-socialism,  it  shows,  in 
very  noteworthy  fashion,  points  of  important  contact 
with  .his  theories.36  His  criticisms  of  parliamentary 
government  have  been  independently  worked  out  by 
Mr.  Graham  Wallas  in  two  books  that  are  already 
classic37;  and  if  Mr.  Wallas  has  been  less  construc- 
tive than  critical,  where  he  has  dealt  with  problems 
of  organisation,  it  has  been  obvious  that  the  synthe- 
sis he  envisages  would  meet  with  M.  Duguit's  keen 
sympathy.  On  the  theory  of  sovereignty  itself,  the 
starting-point  of  all  recent  enquiry  has  been  Mait- 
land's  classic  analysis  of  corporate  personality. 
Here,  indeed,  his  conclusions  have  been  antithetic  to 
those  of  M.  Duguit;  but  since  Maitland  denied  the 
pre-eminence  of  the  state-corporation  over  all  others, 
the  Austinian  idol  disappeared  from  his  system.  Dr. 
Figgis,  in  three  admirable  books,38  has  done  much  to 
dissipate  the  notion  of  an  omnicompetent  state;  and 
no  one  has  done  more  than  he  implicitly  to  answer  the 
adverse  criticisms  of  Professor  Dicey  upon  the  fed- 
eral idea.  The  whole  tendency  in  England,  indeed, 

36  Cf.  Cole,  Self-Government  in  Industry  esp.,  chap.  iii.     A  cu- 
rious volume,   Liberty,   Authority   and    Function   by   Ramiro   de 
Maeztu,  attempts  to  give  gild-socialism  a  juristic  basis  in  M.  Du- 
guit's  ideas. 

37  Human    Nature   in    Politics    (1908);   The   Great    Society 
(1914). 

38  The  Divine  Right  of  Kings  (2nd  ed.,  1914)  ;  From  Gerson 
to   Grotius    (2nd   ed.,    1916)  ;   Churches   in   the   Modern   State 
(1913). 


xxxn  INTRODUCTION 

has  been  to  place  a  decreasing  confidence  in  any  final 
benefit  from  government  action.39  The  social  prob- 
lems it  has  endeavored  to  solve  have  grown  beyond 
the  methods  historically  associated  with  its  function- 
ing, and  the  time  is  ripe  for  new  discovery. 

America  is  fortunately  situated  in  this  respect. 
The  classic  home  of  federalism,  nowhere  is  there 
ground  more  fertile  for  such  seed  as  M.  Duguit  has 
sown.  It  is,  indeed,  true  that  recent  administrative 
tendencies  in  America  have  been  towards  a  centrali- 
sation largely  based  on  raison  d'etat,  but  that  seems 
only  a  temporary  synthesis.40  A  significant  and 
striking  opinion  of  Mr.  Justice  Holmes  has  empha- 
sised the  confidence  of  the  Supreme  Court  in  the  fed- 
eral adventure.41  The  pragmatic  philosophy  of  law 
at  which,  in  the  last  ten  years,  Dean  Pound  has  so 
earnestly  laboured  is,  at  least  in  its  large  outlines,  con- 
sistent with  M.  Duguit's  conclusions.  In  a  very 
learned  work,  Professor  Mcllwain  42  has  offered  a 
theory  of  sovereignty  full  of  possibilities  to  the  stu- 
dent of  these  French  ideas;  and  Mr.  Herbert  Croly, 
perhaps  the  most  penetrating  of  American  observers, 
has  noted,  in  a  study  of  profound  suggestiveness,  the 
decline  and  fall  of  the  sovereign  state.43 

39  Cf.  my  Problem  of  Administrative  Areas,  §1-3  [Smith  Col- 
lege Studies,  IV,  i]. 

40  Cf.  The  New  Republic,  Vol.  XII,  p.  234. 

41  Noble  State  Bank  v.  Haskell,  219  U.  S.,  104. 

42  The  High  Court  of  Parliament  (1910). 

43  Progressive  Democracy  (1915);  and  see  his  remarkable  ar- 
ticle, The  Future  of  the  State,  in  the  New  Republic,  Sept.  15, 
1917. 


INTRODUCTION  xxxiii 

But  it  is  above  all  in  the  background  of  English 
and  American  life  that  the  broad  accuracy  of  M. 
Duguit's  interpretation  finds  its  most  striking  proof. 
The  whole  background  of  American  constitutional- 
ism, for  example,  is  a  belief  in  the  supremacy  of  rea- 
son. The  very  limitation  of  the  much-criticised 
Fourteenth  Amendment  only  means,  as  Mr.  Justice 
Holmes  has  repeatedly  emphasised,  that  legislation 
must  be  reasonably  conceived,  and  adopt  reasonable 
means  of  execution;  and  since  that  term  is  a  matter 
of  positive  evidence,  it  is  not  a  gate  but  a  road.  We 
are  coming  more  and  more  to  bring  to  the  analysis  of 
legal  problems  whatever  facts  seem  likely  to  cast 
light  upon  their  meaning.  We  are  asking  the  state 
to  justify  its  existence  not  so  much  by  the  methods  it 
uses  as  by  the  results  it  can  obtain.  The  decline  of 
Congress,  for  instance,  like  the  similar  decline  of 
Parliament  and  the  French  chamber,  is  to  be  inter- 
preted in  the  light  of  its  inability  to  cope  with  the 
new  demands.  We  have  ceased  to  look  upon  historic 
antiquity  as  the  justification  of  existence;  it  is  the 
end  of  each  institution  of  which  we  make  consistent 
dissection  and  enquiry. 

In  America,  unlike  England,  there  has  been  less 
speculation  than  elsewhere  as  to  the  new  synthesis 
that  is  being  evolved.  The  developments  of  profes- 
sional representation  in  England,  particularly  since 
1916,  show  clearly  that  the  sovereign  state  of  the 
nineteenth  century  is  in  process  there  of  conscious 
transformation.  In  America,  it  is  only  within  recent 


XXXIV  INTRODUCTION 

years  that  the  problem  has  become  sufficiently  acute 
to  merit  an  urgent  examination.  Yet  it  is  already 
obvious  that  the  direction  in  which  the  American 
Commonwealth  is  travelling  gives  a  new  significance 
to  ancient  terms ;  and  the  political  theory  of  the  last 
generation  will  need,  in  large  part,  to  be  re-written. 
The  kind  of  background  for  public  law  that  M.  Du- 
guit  has  drawn  serves  with  accuracy  to  describe  the 
content  of  the  changes  we  have  been  witnessing. 
Based,  of  course,  on  French  experience,  it  needs  adap- 
tation to  fit  English  or  American  affairs;  yet,  in  its 
broad  perspective,  it  is  not  inconsistent  with  the  facts 
at  issue.  Certainly  no  student  who  patiently  exam- 
ined this  effort  could  fail  to  draw  from  it  at  once 
enlightenment  and  inspiration. 

H.  J.  L. 


AUTHOR'S  INTRODUCTION 

IT  IS  perhaps  worth  explaining  why  there  is  a  special 
importance  in  the  present  development  of  the  theory 
of  the  State.  Law,  like  every  social  phenomenon,  is 
subject  to  perpetual  change;  indeed  any  scientific 
study  of  law  must  necessarily  involve  an  analysis  of 
the  evolution  of  legal  institutions.  In  a  sense,  there- 
fore, the  transformation  of  the  State  is  also  the  trans- 
formation of  its  law. 

But  we  must  go  a  little  deeper.  The  real  justifi- 
cation of  this  book  is  the  immediate  situation  of  po- 
litical theory.  Just  as  every  living  being  has  mo- 
ments in  its  existence  when,  even  while  obeying  the 
general  law  of  its  life,  it  undergoes  a  change  that  is 
especially  fundamental  in  importance,  so  it  is  in  the 
history  of  peoples.  Everything  seems  to  make  it 
clear  that  we  are  at  such  a  stage  in  the  history  of  the 
State.  We  are  at  a  critical  period  not  in  any  pessi- 
mistic sense  but  in  one  that  is  merely  descriptive. 
However  little  we  may  like  it,  the  evidence  conclu- 
sively demonstrates  that  the  ideas  which  formerly  lay 
at  the  very  base  of  our  political  systems  are  disinte- 
grating. Systems  of  law  under  which,  until  our  own 
time,  society  has  lived,  are  in  a  condition  of  disloca- 
tion. The  new  system  that  is  to  replace  it  is  built 

XXXV 


xxxvi    AUTHOR'S  INTRODUCTION 


VJ 

ft 


on  entirely  different  conceptions.  Whether  those 
onceptions  mark  a  progress  or  a  decline  it  is  not  our 
business  to  enquire.  A  scientific  social  theory  can 
find  no  meaning  in  such  terms.  It  can  only  point  to 
the  fact  of  significant  difference. 

It  is  no  narrow  change  that  we  are  witnessing. 
There  is  no  legal  institution  it  does  not  involve. 
Theories  of  private  law,  the  family,  contract,  prop- 
erty, these,  no  less  than  the  institutions  of  public  law, 
are  deeply  concerned.  And  while  this  evolution 
knows  no  geographical  boundaries  save  those  of  civ- 
ilization, it  has  developed  in  France  with  peculiar  in- 
tensity. It  has  seemed  the  mission  of  France  to  stand 
in  the  forefront  of  all  epoch-making  change  in  insti- 
tutions and  ideas;  she  holds  open  the  gate  through 
which  the  sister  nations  pass.  There  is  thus  perhaps 
a  peculiar  fitness  in  the  study  of  these  changes  from 
the  standpoint  of  its  French  significance. 

I  have  elsewhere  discussed  this  change  in  so  far  as 
it  touches  private  law.1  I  propose  here  to  discuss  its 
relation  to  the  theory  of  the  state.  Analysis  will 
show  that  the  two  transformations  are  in  fact  parallel 
and  similar.  Not  only  do  they  come  from  like  causes 
but  they  permit  of  resumption  in  an  identical  for- 
mula. A  realistic  and  socialised  legal  system  re- 
places an  earlier  system  that  was  at  once  abstract  and 
individualist  in  character. 

aThe  Evolution  of  Private  Law  (1912).  [This  has  been 
translated  in  the  Continental  Legal  Historical  Series  in  the  volume 
entitled  The  Progress  of  Continental  Law  in  the  Nineteenth  Cen- 
tury. Boston,  1918.] 


AUTHOR'S  INTRODUCTION   xxxvii 

The  theory  of  the  state  under  which  the  last  cen- 
tury civilised  peoples  the  world  over  have  lived 
based  on  principles  which  many  people  served  with 
almost  religious  intensity.  They  were,  so  it  was  con- 
tended, entitled  to  the  final  loyalty  of  men.  They 
were  a  political  hinterland  won  for  science.  It  was 
a  system  with  an  honourable  history.  It  had  its  Dec- 
larations and  its  Constitutions.  The  legislation  of 
the  Revolutionary  period  gave  to  it  a  full  expression 
in  practical  terms.  That  legislation  had  so  profound 
an  influence  as  to  give  those  principles  a  unique  pres- 
tige and  special  authority. 

It  is  in  these  texts  that  the  principles  of  the  sys- 
tem are  clearly  formulated.  Two  fundamental  ideas 
are  the  basis  of  their  strength.  The  one  is  the  theory 
of  state-sovereignty  of  which  the  original  subject  is 
the  nation  regarded  as  a  person,  and  the  other  the  idea 
of  a  natural  inalienable  and  imprescriptible  right 
of  the  individual  personality  which  is  opposed  to  the 
sovereign  right  of  the  state.  The  nation,  so  we  are 
told,  has  a  personality  distinct  from  that  of  the  indi- 
viduals who  compose  it.  It  has  thus  a  will  naturally 
superior  to  the  wills  of  its  constituent  individuals 
simply  because  the  collective  person  is  superior  to  the 
individual  person..  This  superiority  consists  in  what 
we  call  public  power  or  sovereignty.  The  nation  is 
organized.  It  has  built  a  government  to  represent 
it.  That  government  acts  as  the  agent  of  the  national 
volition.  It  thus  exercises  in  the  name  of  the  nation 
a.  sovereignty  of  which  it  cannot  be  deprived.  The 


xxxviii  AUTHOR'S  INTRODUCTION 

state  is  thus  the  sovereign  nation  organised  as  a  gov- 
4f  ernment  and  situated  on  a  definite  territory.  The 
state  as  the  organised  nation  is  thus  the  subject  of 
sovereignty  and  this  public  power  gives  to  it  the 
right  to  exercise  a  subjective  law.  It  is  by  virtue  of 
this  law  that  it  controls  its  members.  Its  commands 
are  the  exercise  of  this  law. 

Its  members  are  at  once  citizens  and  subjects.  As 
a  part  of  the  national  collectivity  which  exercises  sov- 
ereign powers,  they  are  citizens;  but  since  they  are 
subordinated  to  a  government  exercising  sovereignty 
in  the  name  of  the  nation  they  are  also  subjects.  Con- 
stitutional law  is  thus  that  mass  of  regulations  deal- 
ing, first,  with  the  organisation  of  the  state,  and,  sec- 
ond, with  the  relation  of  the  state  to  its  members.2 
We  have  thus  two  unequal  subjects  of  law.  We  have 
a  superior,  a  juristic  person  formulating  commands, 
and  subjects  obeying  those  commands.  Clearly, 
therefore,  such  a  constitutional  system  is  in  its  very 
nature  a  subjective  system.  Its  very  basis  is  the  sub- 
jective right  of  the  state,  as  a  person,  to  command. 

The  right  of  the  state,  then,  is  opposed  to  the  sub- 
jective right  of  the  individual.  It  is  a  natural  right, 
at  once  inalienable  and  imprescriptible.  It  belongs 
to  the  individual  by  virtue  of  its  humanity.  It  is  a 
right  anterior,  even  superior,  to  that  of  the  state.  For 
the  state  was  founded  to  assure  men  protection  for 
their  individual  j-j^hts.  So  it  was  proclaimed  in  the 
second  article  of  the  Declaration  of  Rights:  "The 

2Cf.  Dicey,  Law  of  the  Constitution  (8th  ed.,  1915),  chap.  L 


AUTHOR'S  INTRODUCTION    xxxix 

end  of  all  political  association  is  to  preserve  the  nat- 
ural and  imprescriptible  rights  of  man."  Clearly, 
therefore,  the  first  rule  of  constitutional  law  obliges 
the  state  so  to  organise  itself  as  to  secure  the  maxi- 
mum protection  of  the  individual  rights  of  every 
human  being. 

This  recognition  of  individual  rights  determines 
simultaneously  both  the  direction  and  the  limit  of 
public  activity.  It  is  in  itself  the  source  of  all  rules 
regulating  the  relations  of  individuals  to  the  state. 
The  state  is  compelled  to  protect  individual  rights; 
but  when  the  limitation  of  individual  right  is  neces- 
sary to  protect  the  general  right  the  state  possesses 
this  limiting  power  also. 

It  is  compelled  to  organize  its  defence  against  ex- 
ternal enemies;  for  its  self-maintenance  is  essential 
if  the  protection  of  individual  rights  is  to  be  secured. 
The  state  then  must  organise  an  armed  force  for  the 
purpose  of  war.  It  must  also  organise  internal  or- 
der, for  it  is  by  internal  order  that  individual  rights 
obtain  social  protection.  For  the  latter  purpose  a 
police-service  becomes  important. 

Finally  the  state  submits  itself  to  an  objective  law 
based  on  the  subjective  right  of  the  individual:  Two 
consequences  flow  from  its  obligation  to  secure  the 
rights  of  individuality.  In  the  first  place,  when  le- 
gal conflict  arises  between  the  state  and  one  of  its 
members,  it  must  be  decided  by  a  court  that  the  state 
has  organised  with  every  guarantee  of  competence 
and  impartiality.  The  decision  of  that  court  must 


xl         AUTHOR'S  INTRODUCTION 

V 

be  accepted  by  the  state.  In  the  second  place,  if  a 
H  dispute  arises  between  two  private  citizens,  the  state 
again  must  settle  it  by  a  court  which  offers  every 
guarantee  of  independence  and  capacity.  A  respect 
for  the  decision  of  that  court  must  be  made  univer- 
sal. For  these  purposes  the  judicial  organisation  is 
essential.  We  have,  then,  a  sovereign  power  which 
is  the  subjective  right  of  the  nation  organized  as  a 
state.  That  power  is  limited  by  the  natural  rights  of 
the  individual.  The  state  as  a  consequence  has  the 
duty  of  giving  the  utmost  protection  to  such  individ- 
ual rights.  It  is  therefore  compelled  to  limit  those 
rights  in  so  far  as  they  conflict  with  the  rights  of  all 
— an  obligation  which  entails  the  creation  and  func- 
tion of  military,  police  and  judicial  services.  Such, 
briefly,  is  the  system  of  public  law  which,  inherited 
from  the  past,  was  formulated  with  a  marvellous 
precision  by  the  legislation  of  the  Revolution.  It  is 
a  subjectivist  system.  To  the  subjective  right  of  the 
state  there  is  opposed  the  subjective  right  of  the  indi- 
vidual. Founded  upon  that  right  is  at  once  a  limi- 
tation of  sovereignty  and  the  imposition  upon  the 
state  of  certain  duties.  It  is  an  abstract  system ;  for 
it  is  based  essentially  on  the  concept  of  subjective 
right  which  is  obviously  metaphysical  in  character. 
It  is,  moreoyer,  an  imperialist  or  regalian  system.  It 
implies  that  the  rulers  have  control  of  the  power  to 
•  command  the  imperium  of  the  nation  organised  as  a 
state. 

The  men  of  the  Revolution  did  not  doubt  that 


AUTHOR'S  INTRODUCTION        xli 

when  they  formulated  this  theory  they  were  laying 
down  eternal  principles.  It  seemed  obvious  to  them* 
that  the  legislators  and  jurists  of  all  times  and  coun- 
tries would  have  no  other  task  than  the  deduction  of 
their  logical  consequences  and  the  control  of  their 
practical  application.  The  result  has  been  very  dif- 
ferent. Scarcely  a  century  has  elapsed  before  the 
disintegration  of  the  system  is  apparent  to  every  one. 
Its  two  basic  ideas,  the  sovereignty  of  the  state  and 
the  natural  right  of  the  individual,  are  already  dead. 
We  see  now  that  both  of  them  are  merely  abstract 
conceptions  useless  for  any  juristic  system  that  is  to 
be  truly  scientific.  It  has  long  been  clear  that  divine 
delegation  does  not  explain  the  right  of  sovereign 
power.  National  delegation  is  no  more  satisfactory. 
The  national  will  is  the  merest  fiction.3  In  reality, 
all  that  we  have  is  the  will  of  some  individuals  and 
that  will,  even  if  it  be  unanimous,  is  still  only  the 
will  of  a  sum  of  individuals,  that  is  to  say,  an  indi- 
vidual will  with  no  right  to  impose  itself  on  any  one 
who  resists  it.  So  it  becomes  clear  that  Rousseau's 
Social  Contract,  even  if  it  has  been  the  Bible  of  sev- 
eral generations,  and  has  inspired  the  Revolution,  is 
still,  with  much  splendour  of  style,  only^a  tissue  of 
sophistry.  It  is  clear,  too,  that  man  cannot  have  nat- 
ural rights  in  his  individual  person  simply  because 
by  nature  he  is  a  social  being.  Man  as  an  individual 
is  a  mere  creation  of  the  intellect.  The  very  idea  of 

3  [See,  per  contra,  Bosanquet,  The  Philosophical  Theory  of  the 
State  (London,  1909),  chap,  v.] 


xlii       AUTHOR'S  INTRODUCTION 

right  implies  the  idea  of  social  life.     If,  then,  man 
*has  rights,  he  can  have  them  only  from  his  social 
environment,  he  cannot  impose  his  rights  upon  it.4 

We  have  witnessed  in  the  last  half  of  the  nineteenth 
century  an  immense  economic  change.  The  rigid 
and  abstract  system  of  law  constructed  by  the  Revolu- 
tion can  no  longer  be  harmonised  with  that  change. 
The  economists  have  shown  us  how  in  every  domain 
of  human  activity  a  national  economy  has  been  sub- 
stituted for  a  domestic  economy.  The  family  can  no 
longer  satisfy  human  needs.  A  vast  organisation,  of 
national  extent,  based  upon  the  concurrent  endeavors 
of  large  masses  of  men,  is  alone  adequate  to  that  pur- 
pose. Nor  is  that  all.  Scientific  discovery  and  indi- 
vidual progress  on  the  one  hand,  the  complexity  of 
human  relations  and  the  interdependence  of  social 
life  on  the  other,  are  to-day  so  vital  that  the  very  fact 
that  some  men  are  wanting  in  energy  affects  the  whole 
system.  Above  all,  our  most  basic  needs,  our  postal 
system,  railway  transportation,  our  system  of  lighting 
are  satisfied  by  organizations  of  such  economic  com- 
plexity that  a  moment's  difficulty  in  their  operation 
threatens  the  foundations  of  social  existence.  That 
is  why  the  function  of  the  state  is  widening  so 
greatly.  To  organize  war,  police  and  justice  is  no 
longer  adequate.  The  state  must  see  to  it  that  a 
whole  series  of  industrial  functions  are  in  organised 

4  [See  this  forcibly  put,  though  with  somewhat  different  con- 
clusions, in  Mr.  F.  H.  Bradley's  famous  essay,  My  Station  and 
Its  Duties,  in  his  Ethical  Studies.] 


AUTHOR'S  INTRODUCTION      xliii 

operation.  It  must  prevent  their  interruption  for  a 
single  moment.  Such  is  the  obligation  imposed  upon 
the  ruling  class  by  the  conscience  of  our  age.  Clearly 
enough,  it  is  incompatible  with  the  idea  of  sov- 
ereignty. War,  police,  justice — these  are  the  func- 
tions that  harmonise  with  such  a  conception;  they 
are  indeed  its  direct  manifestation.  But  the  case  is 
different  with  industrial  service.  The  first  need  with 
the  latter  is  not  any  longer  the  power  to  command; 
rather  is  it  the  obligation  in  a  practical  fashion  to 
supply  needs.  We  recognise  that  the  governing 
classes  still  retain  power;  but  they  retain  power  to- 
day not  by  virtue  of  the  rights  they  possess  but  of  the 
duties  they  must  perform.  Their  power  therefore  is 
limited  by  the  degree  in  which  those  duties  are  ful- 
filled. The  functions  they  have  to  achieve  form,  in 
their  totality,  the  business  of  government. 

The  present  evolution,  then,  may  be  summarised 
as  follows :  The  ruling  class  has  no  subjective  sov- 
ereignty. It  has  a  power  which  it  exerts  in  return 
for  the  organization  of  those  public  services  which 
are  consistently  to  respond  to  the  public  need.  Its 
acts  have  neither  force  nor  legal  value  save  as  they 
contribute  to  this  end. 

Constitutional  law  is  no  longer  a  mass  of  rulers  ap- 
plying to  superior  and  subordinate,  to  a  power  that 
can  command  and  a  subject  that  must  obey.  All  wills 
are  individual  wills;  all  are  of  equal  validity;  there  is 
no  hierarchy  of  wills.  The  measure  of  their  differ- 
ence is  determined  by  the  end  they  pursue.  The  will 


xliv          AUTHOR'S    INTRODUCTION 

of  a  statesman  has  no  special  force  in  itself ;  its  valid- 
ity is  derived  from  its  relation  to  the  public  service. 
It  is,  moreover,  a  relation  that  permits  of  degrees. 

So  it  is  that  the  idea  of  public  service  replaces  the 
idea  of  sovereignty.  The  state  is  no  longer  a  sov- 
ereign power  issuing  its  commands.  It  is  a  group  of 
individuals  who  must  use  the  force  they  possess  to 
supply  the  public  need.  The  idea  of  public  service 
lies  at  the  very  base  of  the  theory  of  the  modern  state. 
No  other  notion  takes  its  root  so  profoundly  in  the 
facts  of  social  life. 


CHAPTER   I 
THE  ECLIPSE  OF  SOVEREIGNTY 

WE  have  first  to  discuss  the  causes  that  have  contrib- 
uted to  the  disintegration  of  the  theory  of  sovereignty. 
As  in  the  case  of  every  important  social  problem, 
they  are  as  numerous  as  they  are  complex.  Some 
are  both  anterior  to  the  creation  of  the  imperialist 
system  and  inherent  in  it;  others  are  external  and 
hinge  on  philosophical,  political,  and  economic  con- 
siderations. Indeed,  every  legal  theory  is  the  prod- 
uct of  these  three  factors. 


I 


The  idea  of  sovereignty,  as  we  find  it  in  the  Contrat 
Social  and  the  constitutions  of  the  Revolutionary  pe- 
riod, was  the  product  of  a  long  historic  evolution; 
yet  the  conditions  under  which  it  was  formed  gave  to 
it  a  somewhat  artificial  and  precarious  character.  It 
ought  therefore  to  disappear  at  that  point  in  social 
evolution  when  subjects  demand  from  their  rulers 
something  more  than  the  services  of  defense,  of  po- 
lice, and  justice. 

Like  most  legal  institutions  under  which  European 

l 


2    /;.,  ;^:jy;';rj?;  X^E] '.-MODERN    STATE 

civilization  has  developed,  sovereignty  goes  back  in 
its  origin  to  Roman  law.  During  the  feudal  period 
it  was  almost  completely  eclipsed.  Its  reappearance 
is  a  modern  phenomenon.  It  was  the  action  of  law- 
yers who  mingled  royal  power  with  the  Roman  im~ 
perium  and  feudal  lordship  to  make  the  sovereign 
power  of  modern  law.  In  the  i6th  century  Bodin 
outlined  its  theory;  he  made  of  sovereignty  a  per- 
sonal possession  of  the  king.  In  1789  the  nation 
dispossessed  him.  Law  found  the  legitimacy  of 
its  act  in  the  doubtful  philosophy  of  the  Contrat 
Social. 

A  legal  theory  of  sovereignty  dates  only  from  the 
beginning  of  the  Roman  Empire.  It  was  the  posses- 
sion of  the  people  as  a  whole.  Capable  of  being  del- 
egated to  a  single  man  it  was  confided  to  the  prin- 
ceps  by  the  lex  reg'ia^  It  was  thus  possible  for  the 
emperor  to  concentrate  in  his  person  all  those  powers 
the  Republic  had  divided  between  the  different  mag- 
istracies. The  imperial  power  was  founded  on  a 
twofold  authority;  on  the  one  hand  the  proconsular 
impression  derived  from  the  system  of  prorogation, 
and  on  the  other  the  tribunitian  power  derived  from 
plebeian  constitutions.  The  emperor  obtained  the 
imperium  either  from  the  Senate  or  from  the  Army. 
The  people,  by  the  lex  regia,  transferred  to  him  the 
tribunitian  power. 

In  the  course  of  a  natural  evolution  the  emperor 
came  to  possess  both  the  imperium  and  the  postestas, 

1  Cf.  Ulpian,  L.  i.  Dig.  De  Const.,  prin.  1,  4. 


THE    ECLIPSE    OF    SOVEREIGNTY         3 

as  a  right  to  command  inherent  in  his  position.  It 
was  no  longer  a  right  exercised  by  popular  delega- 
tion ;  it  had  become  a  right  inherent  in  his  character. 
The  development  is  achieved  at  the  end  of  the  third 
century  under  Diocletian  and  Constantine.  If  in  the 
sixth  century  the  Institutes  of  Justinian  still  speak  of 
the  lex  regia  it  is  as  a  piece  of  antiquarianism,  a 
phrase  copied  literally  from  a  text  of  Ulpian.  The 
fact  was  that  the  Roman  Emperor  equaled  his  will 
with  law.  Quod  prlncipi  placult  legis  habet  vig~ 
orem  is  a  maxim  derived  from  the  fact  that  the  em- 
peror now  possesses  full  sovereignty,  can,  that  is  to 
say,  impose  his  will  on  others  as  his  right,  just  be- 
cause it  is  his  will,  just  because  it  therein  possesses  a 
quality  entitling  it  to  general  obedience.  So  the  ge- 
nius of  Rome  created  a  legal  theory  of  public  power 
— later  to  be  called  sovereignty — which  was  to  re- 
main until  the  twentieth  century  the  basis  of  public 
law  in  Europe  and  America. 


II 


During  the  feudal  period  this  theory  of  the  im- 
perium  was  almost  eclipsed.  When  the  Western 
Empire  was  overwhelmed  by  the  barbarian  invasions 
the  ephemeral  effort  of  Charles  the  Great  did  not 
prevent  European  society  from  organizing  itself  in  a 
regime  of  contract.  The  various  social  classes  were 
co-ordinated  in  a  scheme  which  agreement  made  hi- 
erarchical. Duties  and  rights  were  reciprocally  im- 


4  LAW    IN    THE    MODERN    STATE 

posed.  The  feudal  lord  was  not  a  prince  who  com- 
manded by  virtue  of  his  imperium.  He  was  a  party 
to  a  contract,  demanding  the  fulfilment  of  promised 
services  in  return  for  the  fulfilment  of  his  own  prom- 
ises. In  the  texts  of  the  period  we  do  not  find  the 
word  imperium.  Rather  is  the  current  phrase  con- 
cordia,  that  which  unites  men,-  be  they  strong  or  weak, 
by  a  series  of  reciprocal  rights  and  duties.2  Despite 
the  violence  and  conflict  of  which  the  middle  age  is 
so  full,  contract  is  the  basis  of  the  social  structure. 
Yet  the  notion  of  imperium  did  not  entirely  disap- 
pear. In  Germany  it  was  maintained  for  the  em- 
peror's benefit;  in  France  it  was  retained  to  the  royal 
profit.  Even  in  the  feudal  world  the  king  remained 
the  great  dispenser  of  justice.  At  the  very  moment 
when  the  Capetian  monarchy  was  no  more  than  a 
shadow,  men  did  not  forget  that  the  king  "is  charged 
to  obtain  peace  by  justice."  "It  was  not  merely  the 
Church,"  M.  Luchaire  has  rightly  pointed  out, 
"which  above  all  made  the  crown  the  fountain  of 
justice.  The  lay  feudality  itself  recognised  that  the 
whole  purpose  of  the  royal  office  was  justice  and 
peace.  The  oath  taken  by  Philip  I  and  his  succes- 
sors at  their  coronation  bound  them  to  give  to  each 
the  justice  that  was  his  due,  to  do  right  to  all,  and  to 
give  to  the  people  satisfaction  for  its  legitimate 
claims."  3 

2  Cf.  E.  Bourgeois,  Le  Capitulaire  de  Kiersy-sur-Oise,  p.  320. 

3  Luchaire,  Histoire  des  Institutions  Monarchiques  de  la  France, 
I,  40,     Fliche,  La  Regne  de  Philippe  I,  1912. 


THE    ECLIPSE    OF    SOVEREIGNTY         $ 
III 

The  duty  and  power  inherent  in  the  crown  to  as- 
sure to  all  peace  by  means  of  justice  are  the  principal 
elements  in  the  reconstitution  of  the  imperium.  By 
a  skillful  combination  of  Roman  memory  and  feudal 
institutions  the  royal  lawyers  rebuilt  for  the  King  of 
France  what  the  emperor  himself  had  formerly  pos- 
sessed. It  was  the  king,  so  they  taught,  as  an  indi- 
vidual, who  possessed  the  imperium;  it  was  his  prop- 
erty and  the  legal  interpretation  of  the  royal  t'ra- 
perium  derives  from  the  idea  of  individual  owner- 
ship. Just  as  an  owner  has  an  absolute  right  over  his 
goods,  so,  in  the  same  sense,  is  the  royal  imperium  an 
absolute  right;  just  as  an  owner  can  dispose  of  his 
goods  in  whole  or  in  part,  can  give  rights  over  them, 
can  split  up  his  right  of  property,  can  transmit  it  to 
his  heirs,  in  the  same  way  the  king  can  alienate  his 
imperium  in  whole  or  in  part,  can  split  it  up  or  trans- 
mit it  after  his  death.  So  was  formed  the  patrimo- 
nial conception  of  the  state — a  conception  so  domi- 
nant at  one  time  in  Europe  as  to  leave  profound 
traces  in  later  law.  Two  causes  of  very  different 
kinds  have  concurred  in  its  origin. 

On  the  one  hand,  the  persistence  of  Roman  the- 
ories among  the  royal  lawyers  was  important.  Since 
their  position  was  derived  from  the  king's  efforts  to 
find  a  legal  basis  for  his  power,  the  lawyers  believed 
that  they  could  not  better  co-operate  in  that  task  than 
by  making  that  power  the  equivalent  of  the  Roman 


6  LAW    IN    THE    MODERN    STATE 

Jominium.  Feudal  law  in  the  second  place,  under 
the  empire  of  very  complex  circumstances,  estab- 
lished a  close  relation  between  power  and  landed 
property.  There  is  power  only  where  there  is  land- 
ed property  and  its  possession  similarly  implies  a 
certain  power.  Of  course,  as  I  have  pointed  out, 
even  at  the  height  of  the  feudal  regime  the  king  was 
recognized  to  have  a  power  so  personal  as  to  be  in- 
dependent of  his  land.  But  the  feudal  conception 
had  spread  too  widely  not  to  influence  even  the  notion 
of  kingship.  Kingship  indeed  was  more  than  su- 
zerainty; but  the  power  of  kingship  was  regarded 
above  all  as  a  right  of  suzerainty  and  logically  there- 
fore, as  a  property-right. 

When  the  feudal  theory  was  combined  with  the 
memory  of  Roman  ideas  of  dominium  the  outlines  of 
the  new  system  were  already  clear.  The  power  to 
command  is  a  right  analogous  to  that  of  property. 
The  king,  as  a  person,  is  the  possessor  of  that  right. 
In  modern  terms  it  is  a  subjective  right;  a  king,  in 
his  person,  is  its  subject  and  after  the  model  of  pri- 
vate inheritance  he  transmits  his  possession  to  his 
heirs. 

IV 

From  these  materials  the  lawyers  of  the  ancient 
regime  built  up  a  precise  and  complex  theory.  I 
cannot  here  discuss  it  in  detail ;  but  it  will  not  be  use- 
less in  explaining  how  the  modern  theory  of  sov- 
ereignty is  derived  from  the  ancient  regime,  to  cite 


THE    ECLIPSE    OF    SOVEREIGNTY        7 

some  characteristic  passages  from  the  three  jurists 
who  have  most  clearly  expounded  the  principles  at 
the  root  of  public  law  during  the  monarchy. 

Loyseau,  for  example,  writing  at  the  beginning  of 
the  seventeenth  century,  described  the  king  as  fol- 
lows : 4  "The  king  is  above  all  a  functionary  with  the 
full  control  of  all  public  power  .  .  .  and  above  all  a 
lord  with  full  ownership  of  public  power.  .  .  .  Also 
for  long  the  kings  of  France  have  had  sovereign 
power  by  prescriptive  right  of  property."  In  the 
Treatise  of  Lordship,5  Loyseau  takes  up  in  detail  the 
same  idea :  "Lordship  in  its  broadest  sense  is  defined 
as  proprietary  power  .  .  .  power  in  common  both  to 
public  office  and  to  lordship ;  property  distinguishes 
lordship  from  office,  for  the  power  of  office  is  de- 
rived from  its  exercise  and  not  like  that  of  lordship 
from  the  simple  fact  of  property."  Loyseau  then 
divides  lordship  into  public  and  private  types.6 
"Public  lordship  is  so  called  because  it  concerns  and 
deals  with  the  right  to  command  public  power  and 
can  only  be  exercised  by  a  public  person  .  .  .  public 
lordship  is  called  in  Latin  imperitim,  potestas,  dom- 
inatio,  seigneurie"  So  if  imperium  is  a  lordship  it 
is  a  property  and  by  definition  therefore  every  lord- 
ship is  a  property.  It  is  perhaps  worth  noting  that 
Loyseau  himself  draws  a  distinction  between  prop- 

4Traite  des  Offices,  Bk.  II,  chap,  ii,  Nos.  21  and  28  (ed.  of 
1640,  pp.  187-8). 

5Traite  des  Seigneuries,  chap,  i,  No.  5  (Paris,  1640,  p.  6). 
6  Ibid. 


8  LAW    IN    THE    MODERN    STATE 

erty  in  public  and  property  in  private  power,  'Be- 
tween public  lordship  and  private  lordship:  "He 
who  is  submitted  to  private  lordship  is  a  slave;  he 
who  is  submitted  to  public  lordship  is  a  subject." 

This  theory  is  summarized  by  Domat  in  a  concise 
and  vigorous  sentence,7  "The  head  and  centre  of  the 
king's  authority  in  the  state  and  the  starting  point  of 
its  expansion  through  the  body  politic  is  his  own  per- 


son." 


This  power,  a  patrimonial  right  personally  pos- 
sessed by  the  king,  has  been  called  sovereignty  since 
the  end  of  the  sixteenth  century. 

In  its  origin  sovereignty  was  not  the  power  of  the 
king,  it  was  only  a  special  character  attached  to  cer- 
tain lordships  and  notably  to  royal  lordships.  The 
two  Latin  words  from  which  the  term  sovereignty 
x  seems  to  be  derived,  superanus  and  supremitas,  de- 
scribe the  owner  of  a  lordship  who  is  independent  of 
any  other  lordship  or,  as  medieval  lawyers  phrase  it, 
whose  lordship  depends  only  on  God.  Sovereignty 
in  this  sense  is  found  quite  clearly  in  Beaumanoir. 
For  here  it  describes  certain  feudal  lordships.  In 
the  internal  affairs  of  his  barony,  the  lord  recognizes 
no  suzerain,  for  "each  baron  is  sovereign  in  his 
barony."  8  But  the  character  of  sovereign  belongs 
above  all  to  the  king:  "for  the  king  is  sovereign  and 

7Le  Droit  Public,  tit.  iv,  sec.  1,  No.  3  (ed.  of  1713,  p.  21). 
8  La  Coutume  de  Beauvoisis,  chap,  xxiv,  sec.  41   (ed.  of  1842, 
11,  22). 


THE    ECLIPSE    OF    SOVEREIGNTY         9 

has  the  right  of  general  control  over  the  kingdom."  9 
From  the  beginning  of  the  second  half  of  the  elev- 
enth century  the  term  sovereign  is  applied  exclu- 
sively to  the  king;  and  in  the  sixteenth  century  Pas- 
quier  could  write : 1C  "the  word  sovereign  is  usually 
applied  to  all  who  are  the  first  dignitaries  of  France 
but  not  absolutely,  and  with  the  lapse  of  time  it  has 
become  attached  to  the  first  of  those  dignitaries,  that 
is  to  say,  to  the  king." 

It  was  not  long,  by  a  phenomenon  of  frequent  oc- 
currence in  linguistic  history,  that  the  word  sov- 
ereignty, originally  attached  simply  to  a  single  char- 
acter of  the  royal  person,  came  to  mean  the  royal 
power  itself.  It  was  Bodin  who  first  used  the  word 
in  this  sense  and  thus  began,  at  least  in  part,  the  end- 
less controversies  we  have  inherited.  He  defined 
sovereignty  as  "the  absolute  and  perpetual  power  in 
the  state."  Then  he  analyzes  what  he  calls  the  char- 
acteristics of  sovereignty.  The  first  and  most  essen- 
tial "  is  "to  command  all  in  general  and  each  in  par- 
ticular and  that  without  the  consent  of  its  superior, 
equal  or  inferior."  It  is  clear,  therefore,  that  to 
Bodin  sovereignty  is  simply  the  power  of  the  king 
and  that  is  the  meaning  of  the  term  in  later  history. 
Loyseau  himself,  who  for  the  most  part  regards  sov- 
ereignty only  as  a  quality  inherent  in  certain  lord- 

9 1 bid,  chap.  Ixi,  sec.  72  (11,  40,  7). 

10Recherches  sur  la  France,  Bk.  VIII,  ch.  xix  (ed.  of  1723,  1, 
795). 

11  Les  Six  Livres  de  la  Republique,  Bk.  I,  ch.  vii  and  xi. 


10         LAW    IN    THE    MODERN    STATE 

ships,  sometimes  uses  the  word  to  designate  the  royal 
power;12  and  Leyret,  who  first  used  sovereignty  in  its 
original  and  feudal  sense,  soon  came  to  abandon  it 
and  adopt  Bodin's  view  that  it  was  the  totality  of 
power  exerted  by  the  king.13 

In  the  seventeenth  and  eighteenth  centuries,  there- 
fore, sovereignty  means  a  right  to  command  placed 
in  the  king's  hands.  It  is  a  right  of  the  same  kind  as 
the  right  of  property.  The  king  exerts  it  just  as  he 
exerts  his  patrimonial  rights.  Sovereignty  is  a  prop- 
erty; but  it  is  so  unified  that  it  cannot  either  be  di- 
vided or  alienated.  Like  every  proprietary  right, 
it  is,  with  the  exception  of  certain  restrictions  derived 
from  the  nature  of  things,  an  absolute  right.  So  the 
edict  of  1770  asserts  that  the  pretended  fundamental 
laws  cannot  restrict  sovereignty.  It  is  manifested 
above  all  in  statutes  which  are  the  expression  of  the 
sovereign  will  of  the  king. 


Such  are  the  origins  of  the  idea  of  national  sover- 
eignty. It  becomes  one  and  indivisible,  inalienable, 
and  imprescriptible.  Formulated  in  law,  it  ex- 
presses the  national  will.  So  at  least  .we  have  been 
taught  by  the  declarations  and  constitutions  of  the 
Revolutionary  period.  These  formulas  are  as  arti- 

12Traite  des  Seigneuries,  chap,  ii,  Nos.  4-9  (ed.  of  1640,  pp. 
14-15). 

13  De  la  Souverainete  du  roi,  Bk.  I,  ch.  ii  (ed.  of  1642,  p.  5). 


THE    ECLIPSE    OF    SOVEREIGNTY       II 

ficial  as  the  ideas  they  express;  or,  rather,  this  con- 
ception of  sovereignty,  as  the  subjective  right  of  a 
person,  was  an  historical  product  which  was  to  dis- 
appear with  the  circumstances  which  gave  it  birth. 
Yet  it  did  not. 

Every  one  knows  the  teaching  of  Locke,  of  Mably, 
of  Rousseau  and  of  Montesquieu.  Every  one  knows 
the  influence  and  prestige  in  France  of  the  American 
Constitution.  Full  of  admiration  for  its  teaching, 
the  Constituent  Assembly  was  yet  deeply  impreg- 
nated with  the  monarchical  conception.  It  was  for- 
tunately discovered  that  by  a  simple  verbal  change 
the  monarchical  theory  of  sovereignty  could  be  easily 
reconciled  with  the  teaching  of  the  philosophers  and 
the  principles  of  the  American  Constitution.  All 
that  was  necessary  was  to  substitute  the  nation  for  the 
king.  The  king  was  a  person,  a  subject  of  right,  the 
holder  of  sovereign  power;  like  him,  the  nation  will 
be  a  person,  a  subject  of  right,  the  holder  of  sov- 
ereign power.  The  sovereignty  of  the  king  was  one 
and  indivisible,  inalienable  and  imprescriptible;  nor 
will  national  sovereignty  be  here  different.  The 
Declaration  of  Rights  and  the  Constitution  of  1791 
say  categorically  that  "the  source  of  all  sovereignty 
resides  fundamentally  in  the  nation.  .  .  .  Sov- 
ereignty is  one  and  indivisible,  inalienable  and  im- 
prescriptible. It  belongs  to  the  nation."  14  For  very 
different  reasons,  it  is  true,  but  with  significant  re- 
sults, that  same  theory  could  be  discovered  in  thq 

14  Art.  3  of  Constitution  of  1791,  tit.  iii,  art.  1. 


12         LAW    IN    THE    MODERN    STATE 

principles  of  the  ancient  regime  and  the  political  doc- 
trines of  Rousseau. 

So  the  two  currents  met.  When  the  political  phi- 
losophy of  the  eighteenth  century  arrived  at  conclu- 
sions identical  with  those  of  monarchical  theory,-they 
could  not  but  impose  themselves  on  the  legislators  of 
the  Revolution.  For  if  the  latter  were  monarchists 
by  tradition  and  temper,  experience  and  sentiment 
had  made  of  them  philosophers. 


VI 


So  may  be  defined  the  basis  of  public  law  inher- 
ited from  the  Revolution.  The  nation,  as  a  person, 
possesses  a  subjective  right  in  that  power  to  com- 
mand which  we  call  sovereignty.  The  state  is  the 
organized  nation ;  it  is  thence  that  its  sovereignty  is 
derived;  and  public  law  (the  Staatsrecht  of  the  Ger- 
mans) is  the  right  of  the  state  which  consists  of  the 
mass  of  rulers  by  which  its  sovereign  personality  is 
made  manifest.  It  is  these  rules  that  determine  its 
interior  organization,  and  regulate  its  relation  to 
other  personalities;  where  those  personalities  are 
within  its  territory  they  are  subordinate  to  it;  where 
the  personality  in  question  is  that  of  another  state  it 
has  equal  validity  with  its  own.15 

It  is  clear  that  if  the  historical  origin  of  this  con- 
ception is  as  I  have  described  it,  the  notion  of  sov- 

15  [See  this  view  defended  in  Esmein,  Elements  de  Droit  Con- 
stitutionnel,  5th  ed.,  Introduction.] 


THE    ECLIPSE    OF    SOVEREIGNTY       13 


ereignty  must  disappear  when  the  circumstances  that 
produced  it  are  no  longer  effective.    The  personality] 
of  the  nation,  which  is  its  basis,  was  sanctioned  by  I 
the  law  of  the  Revolution  only  to  conciliate  a  living* 
monarchical  tradition  with  the  principles  of  a  po- 
litical philosophy  which  at  that  time  received  the 
enthusiastic  adherence  of  all  thinkers.     The  mon- 
archical tradition  is  almost  dead  and  its  supporters 
cannot  revive  it.     A  new  philosophy,  more  fitted  to 
our  needs,  is  being  elaborated.     With  its  emergence 
the  conception  of  sovereignty  outlined  above  can 
hardly  long  survive. 

Nevertheless,  it  has  persisted  beyond  expectation 
under  the  aegis  of  causes  which  can  only  be  described 
as  quasi-religious  in  character.  In  his  famous  work 
on  the  Revolution,  de  Tocqueville  called  one  chap- 
ter "How  the  Revolution,  though  political,  evolved 
a  religious  Revolution:  The  causes  of  this  phenom- 
enon." "Because,"  he  says,  "it  seemed  to  tend 
rather  to  the  regeneration  of  the  human  race  than  to 
the  mere  reform  of  France,  it  awakened  a  passion 
more  violent  than  the  greatest  political  revolution 
had  thus  far  been  able  to  produce.  ...  As  a  conse- 
quence it  became  a  kind  of  new  religion,  imperfect 
indeed,  without  a  God,  without  dogma,  and  with  no 
independent  life.  Nevertheless,  like  Islam,  it  flung 
its  soldiers,  its  apostles  and  its  martyrs  over  the  face 
of  the  world."  The  basic  dogma  of  the  Revolution- 
ary religion  was  the  principle  of  national  sovereignty. 

16  Chapter  III. 


14         LAW    IN    THE    MODERN    STATE 

It  was  because  it  was  accepted  as  a  new  faith,  that  it 
was  able,  even  though  the  product  of  a  peculiar  his- 
torical environment,  not  merely  to  obtain  acceptance 
but  even  to  survive  the  circumstances  that  produced 
it. 

It  is  of  course  true  that  all  great  social  and  politi- 
cal movements  have  in  some  degree  a  religious  and  a 
mythical  character.  In  each  of  them  is  to  be  found 
as  the  secret  of  its  grandeur  and  its  strength  some 
myth  to  which  the  conscience  of  a  people  of  a  race, 
even  of  an  epoch,  has  passionately  clung.  Such 
myths  seem  to  act  as  principles  of  action  and  sources 
of  energy.  They  clothe  in  concrete  form  an  abstract 
ideal.  They  give  to  that  idea  a  superhuman  and 
mysterious  quality  which  inflames  the  imagination  ^ 
•.of  the  crowd,  above  all  at  those  times  when  man's  /< 
$r  °perennial  need  of  faith  seems  deepest.  Sgsne4  -hat  y 

0- death  blow  at  paganism^  In  our  own  day  a  noble 
spirit  like  Peguy  could  see  in  the  Dreyfus  case  the 
myth  which  might  regenerate  the  modern  world." 
Sorel  has  preached  with  the  same  purpose  the  myth 
of  a  general  strike.  These  are  no  more  than  the 
dreams  of  generous  thinkers.  But  the  myth  of  na- 
tional sovereignty  is  of  a  very  different  calibre.  It 
awakens  the  enthusiasm  of  men.  It  overturned  the 
foundations  of  the  old  monarchical  Europe.  It  in- 
spired every  political  constitution  of  which  the  mod- 
ern world  gives  evidence.  Its  influence  has  even 
"Notre  Jeunesse  (1910). 


THE    ECLIPSE    OF    SOVEREIGNTY       15 

been  felt  in  that  closed  and  unchanging  world  which 
was  the  Chinese  Empire. 

But  a  belief  in  a  myth  is  by  its  very  definition  the 
belief  in  something  that  is  contrary  to  fact.  Inev- 
itably sooner  or  later  its  creative  fecundity  is  ex- 
hausted; reality  claims  its  kingdom.  In  our  own 
time,  with  the  growth  of  the  critical  spirit,  with  the 
obvious  weakening  of  religious  faith,  myths,  if  they 
can  still  be  formed,  have  yet  but  a  short  term  of  life. 
The  mythical  character,  nevertheless,  of  national  sov- 
ereignty has  given  to  it,  even  in  its  untruth,  an  active 
power  for  longer  than  it  could  otherwise  have  pos- 
sessed. But  its  creative  virtue  as  a  principle  of  ac- 
tion and  of  progress  is  passing  away.  It  is  in  too 
evident  contradiction  with  definite  facts.  It  is  pow- 
erless to  protect  us  against  those  who  hold  political 
power.  It  cannot  secure  from  the  governing  class 
the  necessary  assurance  that  the  organisation  and 
operation  of  public  services  will  be  adequately  per- 
formed. 

VII 

With  some  rare  exceptions  there  was  no  class  or 
party  in  the  nineteenth  century  which  did  not  accept 
national  sovereignty  as  a  religious  dogma.  It  is  in- 
deed true  that  those  who  drew  up  the  preamble  of 
the  Charter  of  1814  affirmed  the  permanence  of  the 
monarchical  principle  and  divine  right;  but  that  was 
a  platonic  concession  to  the  wishes  of  Louis  XVIII 
and  it  deceived  no  one;  1830  was  the  re-statement  of 


l6         LAW    IN    THE    MODERN    STATE 

the  principle  of  national  sovereignty.  The  doctri- 
naires of  course  criticised  with  vigorous  penetration 
the  fruitless  artificiality  of  this  conception  of  sov- 
ereignty;18 but  its  criticisms  had  no  practical  result. 
We  ought  yet  to  cite  a  passage  from  a  speech  of  Royer 
Collard  delivered  in  1831,  when  the  proposed  Peer- 
age Bill  was  under  discussion :  "The  majority  of  in- 
dividuals," he  said,  "the  majority  of  wills,  cannot  be 
sovereign.  If  they  are  sovereign  let  us  frankly  ad- 
mit that  the  sovereignty  of  the  people  is  only  the  sov- 
ereignty of  force,  the  most  absolute  form  of  absolute 
power.  But  societies  are  not  merely  numerical  col- 
lections of  men  and  wills.  They  are  not  merely 
made  up  of  numbers.  They  have  a  bond  stronger 
than  that;  they  have  the  privileged  right  of  human- 
ity, and  the  legitimate  interests  born  of  that  right. 
.  .  .  The  will  of  one,  the  will  of  some,  the  will  of  all 
is  only  force  less  or  more  in  its  strength.  We  deny 
that  any  obedience,  any  respect  is  due  to  their  wills 
merely  because  they  are  wills."  That  courageous 
utterance  found  an  echo  either  in  Parliament  or  in 
the  country.  The  Revolution  of  1848  was  made  in 
the  name  of  national  sovereignty;  and  it  was  again  in 
its  name  that  the  monarchies  of  Europe  were  over- 
thrown. Universal  and  equal  suffrage  and  the  ma- 
jority principle  which  is  illogically  deduced  from  it 

18  [Cf.  Duguit,  Law  and  the  State,  31  Harv.  L.  Rev.,  chap,  ix, 
and  my  Authority  in  the  Modern  State,  ch.  iv.] 

19  Archives  Parlementaires,  2nd  Series,  Vol.  70,  p.  360. 


THE    ECLIPSE    OF    SOVEREIGNTY       17 

took  deep   root  in   France.     From   France   it  has 
spread  over  the  whole  world. 

There  has  come  a  change.  With  the  beginning  of 
a  new  century  the  clear  and  decisive  question  is  de- 
fined by  asking  what  reality  this  principle  of  sov- 
ereignty possesses.  It  has  been  ably  and  boldly  crit- 
icised. August  Comte  tilted  in  his  powerful  fash- 
ion against  it.  "In  the  thirty  years  of  my  philosophi- 
cal career,"  he  wrote,  "I  have  always  pictured  the 
sovereignty  of  the  people  as  an  oppressive  mystery, 
and  equality  has  seemed  to  me  an  ignoble  illusion." 
Since  then  the  dogma  has  declined,  and  no  one  has 
more  powerfully  attacked  it  than  the  theorists  of  the 
Action  franqaise  and  those  of  revolutionary  syndical- 


ism.20 


The  former  do  not  deny  the  existence  of  public 
power.  They  urge,  however,  that  it  does  not  belong 
and  cannot  belong  to  the  nation,  which,  from  its  na- 
ture, is  incapable  of  self-government.  It  can  belong, 
as  French  tradition  has  long  taught,  only  to  a  na- 
tional king  whose  dynastic  interest  is  at  one  with  the 
interests  of  the  country.  From  the  positivist  stand- 
point, Deherme  has  arrived  at  the  same  conclusion, 
though  he  substitutes  a  dictator  for  kingship.  The 
syndicalist  attacked  the  very  principle  of  political 
power  and,  drawing  their  inspiration  from  Proud- 
hon,  urge  that  economic  organization  ought  to  re- 
place and  is  replacing  the  idea  of  political  organiza- 

20  [See  this  well  discussed  in  D.  Parodi,  Traditionalisme  et 
Democratic.] 


l8         LAW    IN    THE    MODERN    STATE 

tion.  I  cannot  here  discuss  these  doctrines  in  detail; 
and  that  task  is  rendered  the  less  necessary  by  the  fine 
analysis  of  M.  Guy-Grand.21 

Of  course  these  theoretical  attacks  would  be  fruit- 
less if  the  normal  theory  of  sovereignty  could  adapt 
itself  to  the  facts  of  to-day.  But  everything  goes  to 
show  that  it  is  in  flagrant  contradiction  with  the  so- 
cial and  political  change  that  we  are  witnessing,  and 
with  the  disappearance  of  its  efficacy,  it  has  become 
even  harmful. 

There  are  innumerable  social  and  political  facts 
with  which  the  Revolutionary  theory  of  sovereignty 
is  incompatible.  I  will  take  only  the  most  striking 
which  group  themselves  under  two  heads:  (i)  Na- 
tional sovereignty  implies  an  exact  correspondence 
which  in  fact  is  often  non-existent  between  state  and 
nation;  (2)  national  sovereignty  is  by  definition  one 
and  indivisible;  it  implies  the  suppression  in  the  na- 
tional territory  of  all  groups  exercising  independent 
control.  It  is  however  obvious  that  where  there  is 
decentralisation  or  federalism  such  groups  maintain 
a  vigorous  existence. 

That  there  is  often  no  correspondence  between 
state  and  nation  can  be  immediately  shown.  Some- 
times the  same  government  controls  several  distinct 
groups  each  of  which  is  undeniably  a  nation.  Often 
enough  these  nations  are  even  rivals  and  remain 
united  only  by  their  common  subordination  to  supe- 
rior power.  Of  such  a  condition  the  Austrian  Em- 

21  Le  Proces  de  la  Democratic  (1909). 


THE    ECLIPSE    OF    SOVEREIGNTY       19 

pire  is  a  striking  example.  It  is  an  agglomeration  of 
nations  each  with  a  clear  individuality  of  its  own. 
No  one  can  speak  of  an  Austrian  national  will  that  is 
one  and  indivisible;  no  one  can  say  that  the  Austrian 
state  is  the  Austrian  nation  in  its  political  aspect. 
The  Czechs  of  Bohemia,  the  Germans  of  Austria,  the 
Italians  of  the  Trentino  and  Istria,  the  Poles  of  Ga- 
licia,  the  Serbs  of  Bosnia  and  Hertzegovina  belong  in 
reality  to  distinct  nations.  Where  is  there  a  collec- 
tive will  of  which  the  nation  is  the  subject?  Nobody 
doubts  that  there  is  an  English  people,  but  it  is  not 
less  certain  that  the  Irish  people  are  no  part  of  it. 
The  United  Kingdom  is  of  course  a  state;  but  it  is  not 
a  single  nation  organised  as  a  state.  What  we  have 
is  rather  a  government  imposed  on  three  distinct  na- 
tions. 

Again  the  power  of  government  is  exercised  over 
a  large  number  of  individuals  who,  without  forming 
an  autonomous  nation,  do  not  favor  part  of  that  na- 
tion of  which  the  state  is  principally  composed. 
Every  government  exerts  power  over  men  who  are 
not  subject  to  it  but  merely  found  on  its  territory. 
The  inhabitants  of  colonies  are  subject  to  the  mother 
state  without  being  members  of  its  constituent  nation. 
The  inhabitants  of  the  French  colonies  are  subjects, 
without  being  citizens  of  the  French  state.  There  is 
thus  a  large  number  of  persons  subordinated  to  the 
French  government  without  being  members  of  the 
French  nation.  Such  facts  make  impossible  the  or- 
dinary theory  of  national  sovereignty;  but  the  very 


20         LAW    IN    THE    MODERN    STATE 

basis  of  that  theory  implies  that  public  power  can  be 
exacted  only  over  the  members  of  that  nation  which 
creates  it. 


VIII 

Sovereignty  being,  like  the  national  person  which 
possesses  it,  one  and  indivisible,  the  same  men  and 
the  same  territory  must  be  under  unified  control. 
Since  the  nation  is  a  person  and  its  will  is  sovereign 
political  power,  it  concentrates  in  itself  all  right  to 
command,  and  there  cannot  be  on  its  territory  any 
group  which  shares  in  its  sovereignty.  There  are 
numerous  texts  of  the  Revolutionary  period  in  which 
this  principle  is  consecrated.  It  is  sufficient  to  men- 
tion the  first  article  of  the  preamble  of  the  third 
clause  of  the  Constitution  of  1491,  which  has  already 
been  cited:  "Sovereignty  is  unified,  indivisible,  in- 
alienable and  imprescriptible.  It  belongs  to  the  na- 
tion and  neither  a  part  of  the  people  nor  an  indi- 
vidual can  claim  its  exercise."  But  this  principle  is 
inconsistent  with  two  facts  of  increasing  importance 
in  the  modern  world — decentralisation  and  federal- 
ism.22 To-day  many  countries  with  a  unitary  sys- 
tem of  government,  and  particularly  France,  move 
in  the  direction  of  a  large  decentralization.  Feder- 
alism is  almost  the  common  law  in  America.  In  Eu- 
rope, Switzerland  and  the  German  Empire  are  al- 
ready Federal  states  and  the  system  is  without  doubt 

22  [Cf.  my  Problem  of  Sovereignty,  Appendix.] 


THE    ECLIPSE    OF    SOVEREIGNTY       21 

destined  to  expand.  In  the  usual  theory  of  sov- 
ereignty regional  decentralisation,  with  which  alone 
I  am  concerned  at  the  moment,  is  a  system  in  which 
certain  local  groups,  varying  in  character  and  num- 
ber according  to  the  state  in  question,  exercise  cer- 
tain prerogatives  by  means  of  organs  and  agents  re- 
garded as  representatives  of  the  local  group ;  but  their 
activity  is  more  or  less  strictly  controlled  by  the  supe- 
rior authority.  The  French  Commune  is  a  very  clear 
example  of  a  local  and  decentralised  group.  It  holds 
real  rights  of  sovereign  character:  it  has  a  police 
power,  it  can  levy  taxes,  it  has  the  privilege  of  emi- 
nent domain.  These  powers  are  exercised  by  organs 
and  agents  as  representatives  of  the  commune. 
Whatever  may  be  said,  this  is  the  flagrant  contradic- 
tion to  the  conception  of  a  unified  and  indivisible  na- 
tional personally  exercised  sovereign  power.  It  has 
been  skillfully  suggested,  in  the  effort  to  conciliate 
such  a  disharmony,  that  the  national  state  volun- 
tarily concedes  a  part  of  its  sovereignty,  that  it  de- 
termines how  much  it  will  concede  and  that  it  can 
always  take  it  back;  all  of  which  is  taken  to  mean  that 
an  indivisible  sovereignty  is  thus  implicitly  re- 
served.23 The  fact,  however,  still  remains  that  while 
the  concession  operates  there  is  on  the  national  terri- 
tory a  public  person  possessing  certain  sovereign 
powers  which  yet  forms  a  part  of  the  national  person. 

23  [This  is  the  strict  juristic  fact.  Cf.  the  classic  chapter  on 
Non-Sovereign  Law-making  Bodies,  in  Prof.  Dicey's  Law  of  the 
Constitution1. 1 


22         LAW    IN    THE    MODERN    STATE 

But  this  cannot  be  the  case  if  sovereignty  is  one  and 
indivisible.  To  avoid  the  disharmony,  it  has  been 
urged  that  these  decentralized  groups  are  not  really 
sovereign,  that  though  they  exercise  sovereign  power, 
sovereignty  itself  remains  undividedly  attached  to  the 
indivisible  national  person.  This  is  the  merest  quib- 
bling. In  point  of  fact  local  groups  qua  local  groups 
cannot  exercise  sovereignty.  The  only  persons  who 
can  are  local  agents,  because  they  alone  have  a  real 
will.  It  is  therefore  urged  that  the  state  remains 
completely  sovereign,  that  the  local  agents  are  state 
agents  and  not  representative  of  the  local  groups  and 
there  is  no  longer  therefore  any  decentralisation  in 
the  current  sense  of  the  term. 

As  to  federalism  more  even  than  regional  decen- 
tralisation it  negatives  the  idea  of  state  sovereignty. 
It  is  essentially  constituted  upon  the  basis  that  there 
exists  on  the  same  territory  only  one  nation  but  several 
states  invested  as  such  with  sovereign  power.  Every 
federation  is  divided  into  a  central  and  federal  state 
which  is  the  nation  regarded  as  a  state  and  local 
groups  which,  themselves  states,  constitute  the  fed- 
eration. 

Some  thinkers  are  so  hypnotised  by  the  dogma  of 
the  sovereign  personality  of  the  nation-state  that 
they  do  not  even  see  this  contradiction.  M.  Esmein 
declares  that  "in  unitary  states  sovereignty  is  one. 
The  federal  state,  on  the  other  hand,  although  corre- 
sponding to  a  real  national  unity,  divides  its  sov- 
ereignty. .  .  ,  Certain  attributes  of  sovereignty  are 


THE    ECLIPSE    OF    SOVEREIGNTY      23 

taken  by  the  constitution  from  the  participating  states 
and  transferred  to  the  federal  state."  24  M.  Esmein 
urges  that  this  is  natural.  But  the  German  and  Swiss 
thinkers  who  are  face  to  face  with  the  problem  which 
has  a  special  practical  meaning  for  them  have  had  to 
make  immense  yet  unfruitful  efforts  to  resolve  it. 

Some,  like  Seydel,  have  urged  that  only  the  constit- 
uent states  are  states  and  that  the  German  Empire  is 
not  an  empire  at  all.25  We  can  understand  why  a 
Bavarian  lawyer  should  take  this  point  of  view,  but 
to  urge  that  the  German  Empire  is  not  a  state  seems 
to  go  beyond  the  due  limit  of  paradox.  Other  writ- 
ers have  suggested,  on  the  contrary,  that  only  the 
central  state  is  really  a  state  and  that  there  is  in  law 
no  difference  between  a  decentralised  area  in  a  uni- 
tary country  and  a  constituent  state  in  a  federal  coun- 
try.26 This  again  is  contrary  to  obvious  facts;  and 
even  if  it  were  true,  it  would  explain  nothing;  but 
the  difficulty  would  still  remain  that  the  mere  fact 
of  decentralisation  is  incompatible  with  state  sov- 
ereignty. 

Two  great  students  of  public  law,  Laband  and 
Jellinek,  have  tried  to  solve  the  problem  by  saying 
that  there  can  be  and  are  non-sovereign  states.27  In 
this  view  the  constituent  states  of  a  federation  are 

24  Op.  cit.  (5th  edition),  p.  6. 

25  Seydel,  Kommentar  zur  Verfassung-Kunde  fur  das  deutsche 
Reich   (1st  ed.),  pp.  6,  23. 

26Borel,  Souverainete  et  1'Etat  Federatif  (1886). 
27  Laband,  Droit  Public,  1,  5f.     Jellinek,  Allgemeine  Staats- 
lehre  (2nd  ed.),  p.  470f. 


24         LAW    IN    THE    MODERN    STATE 

states  but  not  sovereign  because  the  central  state  alone 
possesses  sovereignty.  They  try  to  show  that  sov- 
ereignty is  not  the  whole  of  public  power  but  only  a 
certain  quality  of  it.  Despite  their  effort,  the  at- 
tempt is  fruitless  simply  because  neither  Laband  nor 
Jellinek  explains  the  differences  between  a  decentral- 
ised area  and  a  constituent  state  in  a  federation.  In 
any  case  the  doctrine  would  explain  nothing,  because 
the  real  difficulty  is  to  show  how  public  powers, 
either  in  federalism  or  in  decentralization,  admit  of 
division. 

It  is  without  result  that  Gierke  in  Germany 28  and 
Le  Fur  in  France  29  have  exhausted  the  resources  of 
ingenious  subtlety  to  explain  the  difference  between 
the  unitary  and  the  federal  state  even  while  the  sov- 
ereignty of  the  latter  remains  one  and  indivisible.  In 
their  view  the  federal  state  like  the  unitary  state 
shows  a  correspondence  between  state-unity  and  na- 
tional unity.  There  is  only  one  state  as  there  is  only 
one  nation;  there  is  only  one  sovereign  person — the 
nation  organised  as  a  federated  state,  but  the  feder- 
ated state  is  itself  a  corporation  of  states;  they  com- 
bine to  form  the  sovereign  personality  of  the  federal 
state.  They  are  like  the  citizens  in  a  unitary  demo- 
cratic state.  They  participate — and  this  is  the  typi- 
cal trait — in  the  formation  of  a  state-will.  As  a  con- 
sequence they  are  related  not  merely  to  the  exercise 
of  sovereignty  but  to  its  very  substance. 

28Jahrbuch  de  Schmoller,  VII,  1097. 
29L'Etat  Federal,  p.  697 i. 


THE    ECLIPSE    OF    SOVEREIGNTY      2£ 

In  truth,  this  is  the  merest  dialectic  without  rela- 
tion to  reality.  No  one  can  define  the  substance  of 
sovereignty.  To  equate  the  state  in  a  federation  to  a 
citizen  in  a  unified  democratic  state  explains  just 
nothing  at  all.  Nor  does  this  doctrine  explain  any 
better  than  the  others  how,  if  sovereignty  is  the  indi- 
visible will  of  the  nation,  local  groups  can  possess 
some  of  its  prerogatives. 

We  have  dwelt  on  this  problem  because  it  is  de- 
fined for  the  modern  publicist  as  the  root  of  all  prob- 
lems. Immense  efforts  have  been  made  to  solve  it. 
They  have  only  shown  that  there  is  an  implacable 
disharmony  between  the  concept  of  sovereignty  and 
the  facts  of  actual  life. 


IX 


This  insoluble  antinomy  is  not  the  cause  which  has 
destroyed  the  idea  of  sovereignty.  It  might  even 
have  persisted  despite  everything  if  men  had  believed 
in  its  practical  efficacy.  The  exact  contrary  is  the 
case.  The  modern  conscience  clearly  feels  that  what 
we  demand  from  the  state  cannot  find  its  judicial 
sanction  in  any  system  that  is  so  derived. 

A  legal  system  is  real  only  in  the  degree  in  which- 
it  creates  and  sanctions  rules  satisfying  the  needs  of 
men  in  a  given  society  at  a  definite  moment  of  time. 
It  is  no  more  than  the  product  of  these  needs;  for  if 
this  is  not  the  case,  or  if  it  does  not  secure  the  satis- 
faction of  them,,  it  is  the  artificial  construction  of  a 


26         LAW    IN    THE    MODERN    STATE 

law-giver  and  a  jurist  and  so  without  validity  or 
force.  Any  system  of  public  law  can  be  vital  only  so 
far  as  it  is  based  on  a  given  sanction  to  the  following 
rules :  First,  the  holders  of  power  cannot  do  certain 
things ;  second,  there  are  certain  things  they  must  do. 
Men  feel  to-day  profoundly  convinced  that  an  im- 
perialist system  of  public  law  can  give  no  security 
that  these  rules  can  be  established.  They  feel  that  be- 
cause criticism  has  shown  the  decline  of  the  doctrine. 
They  understand  its  futility  because  actual  facts  have 
demonstrated  that  the  theory  of  the  sovereign  state 
cannot  protect  the  individual  against  despotism.  It 
is  of  course  true  that  when  in  1789  the  National  As- 
sembly proclaimed  and  defined  the  dogma  of  sov- 
ereignty, its  main  thought — it  is  its  chief  claim  to 
fame — was  to  determine  at  once  the  basis  and  extent 
of  the  limits  of  sovereignty.  Their  answer  was  the 
Declaration  of  the  Rights  of  Man.  They  postulated 
as  an  antithesis  the  sovereignty  of  the  state  and  that 
autonomy  of  the  individual  will  we  call  liberty. 
They  affirmed  that  the  right  of  the  state  is  limited  by 
the  right  of  the  individual  and  that  the  state  can  act 
only  to  protect  only  to  the  degree  in  which  it  does 
protect  that  liberty.  But  individual  liberty  must  it- 
self be  limited ;  the  most  extreme  individualists  admit 
that  only  upon  this  condition  the  social  life  becomes 
possible.  If,  then,  individual  liberty  limits  the  sov- 
ereignty of  the  state  it  can  only  be  up  to  a  certain 
degree,  since  it  is  itself  limited.  There  thus  arises  a 
twofold  question:  In  what  degree  is  liberty  to  be 


THE    ECLIPSE    OF    SOVEREIGNTY      27 

limited?  What  guarantee  have  we  that  this  limita- 
tion will  not  be  arbitrary?  The  answer,  and  it  is  the 
only  possible  answer,  is  that  individual  liberty  can  be 
limited  only  in  the  degree  involved  in  the  protection 
of  general  liberty.  It  is  admitted  that  this  limita- 
tion can  be  made  only  by  the  law,  that  is  to  say,  by  a 
general  resolution  voted  by  the  nation  or  its  repre- 
sentatives. (Declaration  of  the  Rights  of  Man 
[1789],  Articles  4  and  6.) 

But  these,  as  experience  has  shown,  are  the  frailest 
of  guarantees.  That  doctrine  which  postulates  as 
fundamental  the  completest  individualism  has  to- 
day but  few  adherents.  Most  men  see  in  it  only  an 
abstract  argument  defended  just  as  all  such  doctrines 
find  their  defenders,  but  not  otherwise.  That  is  only 
to  say  that  it  is  a  dead  doctrine.  Assuredly  there  is 
some  guarantee  in  a  law  limiting  individual  liberty. 
Its  very  generality  protects  the  individual  against 
partisanship  in  government.  But  the  men  of  1791 
believed  law  to  be  infallible  because,  to  them,  it  was 
the  very  will  of  the  nation.  Experience,  however, 
has  shown  that  they  were  completely  wrong.  If  a 
law  is  voted  directly  by  the  people,  it  is  the  work  of  a 
passionate,  eager  crowd  possibly  without  relation  to 
justice.  It  is  true  that  Rousseau  said  30  that  "the  sov- 
ereign being  formed  only  of  private  citizens  neither 
has  nor  can  have  interests  opposed  to  theirs;  as  a  con- 
sequence, sovereign  power  need  not  give  guarantees 
to  its  subjects  since  it  is  impossible  that  a  body  should 

30  Social  Contract,  Bk.  I,  ch.  viu 


28          LAW    IN    THE    MODERN    STATE 

desire  to  harm  all  of  its  members."  To-day  this 
reads  as  no  more  than  a  tragic  sophistry. 

There  is  no  greater  guarantee  if  the  law  is  passed 
by  an  elected  parliament.  Parliament  indeed  has 
rightly  affirmed  that  it  represents  the  national  will, 
but  in  fact  law  is  the  individual  work  of  a  few  depu- 
ties. When  universal  suffrage  was  established  in 
1848  it  was  believed  in  good  faith,  but  naively,  that 
all  was  saved.  The  plebiscite  of  1851  ratified  the 
coup  d'etat. 

The  commissions,  general  surety  laws,  and  briefly 
the  whole  despotism  of  the  early  years  of  the  Second 
Empire,  enlightened  men's  minds  as  to  the  guarantees 
to  be  expected  from  universal  suffrage. 

Indeed  the  conception  of  sovereignty  has  always 
been,  both  in  theory  and  practice,  an  absolutist  con- 
ception. At  the  beginning  of  the  Contrat  Social 
Rousseau  declares  that  "it  is  against  the  nature  of  a 
body  for  the  sovereign  to  impose  a  law  he  cannot  en- 
force, so  that  there  is  not  and  cannot  be  any  kind  of 
binding  public  law;  not  even  the  social  contract,  on 
the  body  of  the  people."  He  justifies  this  proposi- 
tion by  a  strange  piece  of  sophistry. 

"Whoever,"  said  he,31  "refuses  to  obey  the  general 
will  may  be  constrained  to  do  so  by  the  whole  people, 
which  means  nothing  else  than  that  he  may  be  forced 
to  be  free."  It  was  in  the  name  of  this  doctrine  that 
the  Convention  laid  on  France  the  burden  of  its  cruel 
tyranny;  and  the  two  Napoleons  did  not  hesitate  to 
k.I,ch.  viu 


THE    ECLIPSE    OF    SOVEREIGNTY       29 

invoke  popular  right  as  the  basis  of  their  despotism. 
Those  German  jurists  who  like  Gerber  and  Laband 
wished  to  make  the  imperial  despotism  into  a  legal 
theory  use  Rousseau  and  his  false  conception  of  sov- 
ereignty for  a  similar  purpose. 

That  is  not  all.  The  ruling  class  to-day  must  not 
only  abstain  from  certain  things,  but  must  perform 
other  things.  We  therefore  need  a  system  of  public 
law  in  which  this  positive  obligation  is  enshrined. 
Now  in  this  regard  a  system  based  on  sovereignty  is 
obviously  by  its  very  nature  impossible.  This  was 
not  obvious  when  the  state  provided  no  more  than 
police,  military  and  judicial  services.  Indeed,  the 
holders  of  power  must  naturally  take  measures  for 
the  defence  of  the  territory  and  to  impose  order  and 
peace.  In  so  acting  they  serve  their  own  interests, 
since  defence  against  external  hostilities  and  the 
maintenance  of  order  within  are  the  very  conditions 
under  which  they  retain  power. 

From  another  point  of  view  when  governmental 
activity  was  limited  to  the  performance  of  these  serv- 
ices, their  acts  appeared  as  simply  unilateral  com- 
mands. The  imperium  of  the  Roman  Emperor,  the 
jurisdiction  of  the  Roman  magistrate  made  itself  ap- 
parent above  all  as  a  right  to  command.  The  kings 
of  France,  who  inherited  the  Roman  tradition  under 
a  different  name,  inherited  the  same  attributes. 
When,  therefore,  in  1789  and  1791  it  was  desired  to 
determine  and  analyze  the  content  of  governmental 
activity,  it  seemed  no  more  than  the  power  to  com- 


30        LAW    IN    THE    MODERN    STATE 

mand;  and  upon  that  basis  the  theory  of  the  three 
powers  was  constructed. 

To-day  as  a  result  of  a  complex  transformation, 
due,  partly,  to  the  progress  of  knowledge,  and  partly 
to  economic  and  industrial  change,  the  business  of 
government  has  gone  beyond  the  provision  of  justice 
and  police  and  of  defence  against  war.  They  are  re- 
quired to  perform  the  most  numerous  and  varied 
services,  many  of  them  of  an  industrial  character. 
They  are  what  the  Germans  call  in  their  mass  Kul- 
tur:  government  must  perform  the  activities  neces- 
sary to  the  development  of  the  individual  well-being, 
physical,  intellectual  and  moral,  and  the  material 
prosperity  of  the  nation.  The  interest  of  government 
is  no  longer  identical  with  that  of  its  subjects.  It  is 
not  opposed  to  it,  but  it  is,  definitely,  distinct  from  it. 
The  result  is  to  create  the  need  of  such  a  system  of 
public  law  as  will  implicitly  sanction  these  obliga- 
tions. But  that  need  reveals  the  impotence  of  the 
imperial  system. 

It  is  true,  of  course,  that  in  such  a  system  the  sov- 
ereignty of  the  state  is  limited  by  liberty.  But  to  the 
individual,  liberty  is  a  right  to  develop  without  hin- 
drance his  physical,  intellectual  and  moral  capacities; 
it  is  not  the  right  to  demand  the  co-operation  of 
others  or  of  the  state  either  in  their  development  or 
accomplishment. 

When,  moreover,  government  performs  these  func- 
tions what  is  revealed  is  not  command,  the  preroga- 
tive of  a  sovereign  will,  or  the  manifestation  of  the 


THE    ECLIPSE    OF    SOVEREIGNTY      3! 

traditional  imperium.  When  the  state  provides  pub- 
lic instruction,  gives  help  to  the  poor,  or  assures  trans- 
portation, it  is  difficult  to  relate  these  activities  nearly 
or  remotely  to  a  power  to  command.  Now,  if  the 
state  by  definition  and  by  nature  is  a  group  which 
commands,  that  must  always  be  its  nature.  If  the 
state  is  not  sovereign  in  one  only  of  its  activities  it  is 
never  sovereign. 

Yet  in  those  great  state  services  which  increase 
every  day — educational,  the  Poor  law,  public  works, 
lighting,  the  postal,  telegraph  and  telephone  systems, 
the  railways — the  state  intervenes,  but  it  intervenes  in 
a  manner  that  has  to  be  regulated  and  ordered  by  a 
system  of  public  law.  But  this  system  can  no  longer 
be  based  on  the  theory  of  sovereignty.  It  is  applied 
to  acts  where  no  trace  of  power  to  command  is  to  be 
found.  Of  necessity  a  new  system  is  being  built,  at- 
tached indeed  by  close  bonds  to  the  old  but  founded 
on  an  entirely  new  theory.  Modern  institutions,  un- 
der the  new  and  fruitful  jurisprudence  of  the  Conseil 
d'Etat,  take  their  origin,  not  from  the  theory  of  sov- 
ereignty, but  from  the  notion  of  public  service. 


CHAPTER   II 
PUBLIC   SERVICE 

THE  idea  of  public  service  is  to-day  replacing  the  old 
theory  of  sovereignty  as  the  basis  of  public  law.  It 
is  not,  of  course,  a  new  attitude.  So  soon  as  the  dis- 
tinction between  rulers  and  subjects  was  established, 
the  idea  of  public  service  was  born.  So  soon  as  it 
was  understood  that  certain  duties  were  imposed  on 
rulers  from  the  fact  of  their  power  and  that  the  jus- 
tification and  meaning  of  its  exercise  were  therein  to 
be  discovered,  the  implications  of  the  idea  of  public 
service  were  obvious.  What  is  new  is  the  important 
place  that  it  to-day  occupies  in  the  field  of  law. 
Here,  indeed,  is  the  source  of  the  profound  change 
we  have  been  witnessing.  It  is  no  longer  an  a  priori 
formula.  It  has  become  the  expression  of  our  actual 
situation. 

I 

There  is  one  source  of  information  we  must  not 
neglect.  The  doctrines  of  the  theorists  and  the  af- 
firmations of  statesmen  have  a  special  significance. 
They  do  not,  of  course,  yet  suggest  any  general  or 
precise  standpoint,  but  their  hesitations  and  denials 

32 


PUBLIC    SERVICE  33 

are  sufficiently  numerous  to  be  significant.  Every- 
where statesmen  are  agreed  that  the  theory  of  the 
s.tate  has  entered  a  new  phase.  They  claim  still  a 
right  on  the  state's  part  to  command,  but  they  admit 
also  that  it  has  duties  to  perform.  The  theorists  in 
their  turn  admit  that  sovereignty  no  longer  occupies 
the  most  important  place  in  public  law.  In  the  impe- 
rialist system  it  was  essential  to  regard  the  state  as  a 
person,  for,  since  public  power  was  a  right,  a  subject 
of  that  right  was  necessary.  Now  it  is  said  that  while 
the  personality  of  the  state  can  not  be  absolutely  de- 
nied, its  domain  ought  to  be  limited,  that  it  is  only 
sometimes  a  person,  that  it  may  on  occasion  have  a 
dual  personality,  each  distinct  in  its  nature.  Hesita- 
tions and  contradictions  of  this  sort  show  how  criti- 
cal is  the  transformation  that  we  are  witnessing. 

It  is  needless  to  multiply  citations.  We  may  re- 
call the  speech  of  M.  Clemenceau,  then  President  of 
the  Council,  at  the  inauguration  of  the  monument  to 
Scheurer-Kestner.  Recalling  the  part  played  by  that 
great  citizen  in  the  Dreyfus  case,  M.  Clemenceau 
spoke  as  follows :  "The  die  was  cast.  Already  the 
crowd  instinctively  turned  to  the  partisans  of  Barab- 
bas.  And  that  should  give  us  anxious  pause.  The 
idea  of  number,  universal  suffrage,  seemed  to  fail  us; 
yet  is  it  not  here  the  very  foundation  of  democracy 
that  we  are  questioning?  Well!  let  us  hasten  to  say 
that  democracy  is  not  a  government  by  counting  heads 
in  the  sense  in  which  the  partisans  of  authority  inter- 
pret government  .  .  .  democracy  must  be  the  gov- 


34         LAW    IN    THE    MODERN    STATE 

ernment  of  reason.  .  .  .  But  if  we  expect  from 
these  temporary  majorities  the  exercise  of  the  power 
which  was  used  by  our  ancient  kings,  all  we  shall 
have  achieved  is  to  change  the  source  of  tyranny."  x 
A  little  time  earlier  M.  Barthou  expressed  an  analo- 
gous idea  when  he  wrote:  "It  is  necessary  to  live 
with  the  times  and  not  to  perpetuate  in  our  customs 
the  dogma  of  a  sovereign  and  infallible  state  of  which 
the  civil  servants  are  the  resigned  and  dumb  slaves." 

It  is,  moreover,  clear  that  the  urgent  movement  to- 
wards proportional  representation  reveals  the  same 
tendencies.  This  interpretation,  of  course,  is  not 
based  either  upon  the  unstable  attitude  of  certain 
statesmen  or  the  change  of  heart  produced  among 
some  of  them  who  are  no  longer  in  power.  They  are 
but  the  chance  vagaries  which  any  serious  observer 
of  social  facts  has  the  right  to  neglect.  But  no  one 
can  deny  that  there  exists  in  France  an  intense  belief 
in  electoral  reform  which  far-sighted  statesmen  of 
every  party  have  quite  clearly  understood.3  They 
perceive  quite  clearly  that  we  cannot  to-day  be  satis- 
fied with  the  over  simple  notion  of  a  sovereignty 
which  expresses  itself  in  an  electoral  majority.  That 
is  no  longer  the  fundamental  principle  of  public  law. 
On  the  day  (July  10,  1912)  when  by  339  votes  to  217, 
the  Chamber  of  Deputies  adopted  an  electoral 
scheme  of  which  the  first  article  provided  that  depu- 

1  Journal  officiel,  4  Feb.,  1908. 

2  Quoted  in  L'Humanite,  Feb.  1st,  1906. 

3  rCf.    Georges    Lachapelle,    L'CEuvre    de    Demain.     Paris, 
1917.] 


PUBLIC    SERVICE  35 

ties  should  be  elected  by  the  system  known  as  the 
scrutin  de  liste,  with  minority  representation  we 
reached  an  important  stage  in  the  evolution  of  public 
law.  It  was  not  only  the  desire  to  establish  a  better 
electoral  regime,  to  remove,  so  far  as  possible,  the  in- 
fluence of  corruption  and  to  support  the  administra- 
tion against  political  intrigue.  What,  above  all,  it 
meant  was  the  recognition  by  the  French  Chamber 
that  majority  rule  is  no  longer  the  fundamental  prin- 
ciple of  modern  democracy;  that  the  idea  of  national 
sovereignty,  so  intimately  connected  with  it,  is  no 
longer  the  basis  of  the  theory  of  the  state. 

II 

If  the  belief  of  statesmen  in  the  dogma  of  sov- 
ereignty has  been  thus  profoundly  shaken,  that  of  the 
jurists  is  not  less  so.  One  only  remains  unmoved 
amidst  the  ruins  of  an  ancient  system.  In  the  nu- 
merous editions  of  his  book  on  Constitutional  Law 
M.  Esmein  writes  with  always  the  same  calm  and 
strong  certainty:4  "The  state  is  the  legal  personifi- 
cation of  the  nation,  ...  it  is  the  subject  and  the 
basis  of  public  authority.  The  basis  of  public  law 
is  found  in  yielding  to  a  sovereignty  outside  and 
above  those  who  exercise  it  at  any  given  moment  an 
abstract  and  an  ideal  subject  which  personifies  the 
whole  nation.  This  person  is  the  state.  Its  essential 
quality  is  its  relation  to  sovereignty." 

4  Droit  Constitutionnel,  5th  ed.,  pp.  1-2.  [The  words  remain 
unchanged  in  the  sixth  edition.] 


36         LAW    IN    THE    MODERN    STATE 

The  same  doctrine  is  accepted  by  many  German 
theorists  and  notably  in  the  writings  of  Laband. 
What  M.  Esmein  calls  sovereignty,  however,  they 
call  public  power  and  they  reserve  the  former  term 
for  certain  characteristics  of  the  latter.  With  these 
subtle  distinctions  we  have  no  concern.  The  doc- 
trine, with  both,  is  fundamentally  the  same.  But 
while  M.  Esmein  accepts  it  as  a  result  of  observations 
that  are  as  certainly  inaccurate  as  they  are  undoubt- 
edly conscientious  and  impartial,  the  attitude  of  most 
German  jurists  is  derived  from  their  desire  to  give 
at  least  the  appearance  of  legality  to  the  imperial  au- 
tocracy.5 

French  publicists  have  clearly  perceived  the  di- 
rection of  this  change  even  while  they  have  hardly 
dared  to  admit  it  to  themselves.  They  retain  the  no- 
tion of  sovereignty  but  under  the  pressure  of  facts 
they  reduce  it  to  a  nullity.  Sometimes  while  they 
deny  the  personality  of  the  state  they  desire  to  main- 
tain the  idea  of  sovereignty,  which,  thereby  deprived 
of  its  necessary  basis,  becomes  almost  ethereal.  I 
cannot  attempt  here  to  summarise  these  doctrines.  I 
can  only  point  out  in  a  few  words  how  two  writers 
who  are  admittedly  among  the  most  representative 
of  French  publicists  are  led  to  the  denial  of  sov- 
ereignty. 

So  long  ago  as  the  sixth  edition  of  his  Precis  de 

5  Laband,  Droit  Public,  above  all,  Vol.  I.  [See  this  well 
brought  out  in  Joseph  Berthelemy:  Les  Institutions  Politiques  de 
rAllemagne  Contemporaine,  1915.] 


PUBLIC    SERVICE  37 

Droit  administratlf  (1909),  M.  Hauriou  has  written 
that  "sovereignty  and  law  are  no  longer  of  primary 
importance  since  they  do  not  any  longer  fundamen- 
tally determine  the  practical  interaction  of  forces." 
On  page  235  of  his  Principes  de  Droit  Public 
(1910)  M.  Hauriou  said  "These  theoretical  reserves 
(the  theoretical  limitation  of  sovereignty)  do  not 
make  it  impossible  for  us  to  attack  at  its  root  the  be- 
lief in  the  absolute  power  of  the  general  will.  Few 
false  doctrines  have  had  so  evil  an  influence  as  that 
doctrine."  This  is  surely  the  formal  condemnation 
of  traditional  belief,  but  the  basic  notion  of  a  new 
system,  as  M.  Hauriou  states  it,  is  even  more  strik- 
ing. He  admits  that  there  is  a  power  to  command, 
but  he  does  not  make  that  power  a  subjective  right; 
he  does  not  create  a  juristic  person  as  the  subject  of 
that  pretended  right.  What  he  does  see  is  an  actual 
power  to  compel.  "The  whole  social  organisation 
of  a  country,"  writes  M.  Hauriou,6  "economic  no  less 
than  political,  derives  from  a  mass  of  established  sit- 
uations kept  constant  by  this  power  to  compel.  .  .  . 
The  real  function  of  this  power  is  to  create  and  to 
protect  certain  states  of  fact.  It  is  too  often  re- 
garded as  a  simple  form  of  command  and  constraint 
without  due  attention  being  given  to  purpose.  .  .  . 
The  real  function  of  power  is  to  create  order  and 
stability.  .  .  .  This  function  it  fulfils  with  more  or 
less  success.  Power  is  legitimate  when  the  fulfilment 
is  adequate." 

6  Principes  de  Droit  Public,  1910,  pp.  78-9. 


38         LAW    IN    THE    MODERN    STATE 

These  quotations  make  clear  the  essential  drift  of 
M.  Hauriou's  thought.  Clearly,  for  him,  sovereign 
power  is  no  longer  the  essential  element  in  public 
law.  The  personality  of  the  state  is  restricted  in  its 
domain  to  a  kind  of  juristic  effort  at  arrangement. 
Doubtless  the  power  to  compel  continues  to  exist; 
but  it  continues  to  exist  not  so  much  as  a  subjective 
right  inherent  in  the  state  as  a  social  function.  This 
social  function  is  the  very  basis  of  the  idea  of  public 
service;  so  that  M.  Hauriou  practically  recognises 
that  public  service  is  the  only  adequate  foundation 
for  a  modern  system  of  politics. 

The  same  tendency  is  clear  in  the  work  of  M.  Ber- 
thelemy.  Like  M.  Hauriou,  he  makes  the  person- 
ality of  the  state  exclusively  patrimonial  in  charac- 
ter. He  does  not  deny  the  existence  of  public  power ; 
but  again  public  power  is  not,  for  him,  a  subjective 
right.  "Governmental  acts,"  he  says,7  "do  not  imply 
the  existence  of  a  juristic  person  in  whose  name  they 
are  performed.  .  .  .  The  idea  of  personality  is  in- 
dispensable only  when  we  try  to  present  the  state  as  a 
subject  of  rights.  Persons  only  have  rights;  the  use 
of  power  is  in  no  sense  the  exercise  of  rights.  A  civil 
servant  who  gives  an  order  does  not  exercise  a  sov- 
ereign right.  What  he  does  is  to  fulfil  his  functions 
and  then,  if  you  will,  the  ensemble  of  such  functions 
may  be  said  to  constitute  sovereign  power." 

I  cannot  here  enquire  whether  M.  Berthelemy  is 
consistent  when,  after  having  said  that  what  is  com- 

7Droit  Administratif  (7th  ed.)>  pp.  41-2, 


PUB  LIC    SERVICE  39 

monly  called  power  or  sovereignty  is  simply  a  func- 
tion of  the  organs  that  build  up  the  state,  he  distin- 
guishes between  functions  based  on  the  right  to  com- 
mand and  functions  in  which  commands  are  merely 
obeyed.  The  distinction  has  given  rise  to  immense 
controversy  with  which  I  shall  deal  later.  But  it  is 
important  to  remember  that  both  these  thinkers  in- 
sist that  sovereign  power  is  a  function  and  not  a  sub- 
jective right  to  command.  Both  therefore  eliminate 
from  public  law  the  subjective  right  of  power  and 
base  it  simply  and  solely  on  the  idea  of  a  social  func- 
tion the  rulers  must  fulfil. 

This  idea  of  a  social  function  which  both  statesmen 
and  political  theorists  are  beginning  to  place,  as  they 
begin  to  perceive  it,  at  the  very  root  of  public  law  is 
no  more  than  the  idea  of  public  service.  We  must 
now  define  its  elements. 


Ill 


These  are  in  fact  already  clear.  They  consist  es- 
sentially in  the  existence  of  a  legal  obligation  of  the 
rulers  in  a  given  country,  that  is  to  say  of  those  in 
fact  who  possess  power,  to  ensure  without  interrup- 
tion the  fulfilment  of  certain  tasks.  This  idea,  as  we 
shall  see,  solves  every  problem  by  which  we  are 
to-day  confronted  in  public  law  and  thus  is  self- 
demonstrative;  nor  do  we  desire  any  other  proof  of 
its  accuracy.  But,  for  precision's  sake,  it  is  impor- 
tant to  discuss  (i)  who  are  the  rulers;  (2)  what  is 


40         LAW    IN    THE    MODERN    STATE 

the  basis  of  the  obligation  which  is  imposed  upon 
them;  (3)  what  is  the  purpose  of  this  obligation. 

Who  are  the  rulers?  From  what  has  already  been 
said  it  is  clear  that  in  actual  fact  they  are  not  the  rep- 
resentatives of  a  sovereign  and  collective  person 
called  the  nation.  We  no  longer  believe  in  the  dog- 
ma of  national  sovereignty  any  more  than  in  the 
dogma  of  divine  right.  The  rulers  are  those  who 
actually  have  the  power  of  compulsion  in  their  hands. 
Why  and  how  do  they  possess  it?  These  are  ques- 
tions which  can  receive  no  general  answer.  The  fact 
of  possession  is  the  product  of  historical,  economic, 
and  social  forces  which  vary  in  each  country.  Gov- 
ernmental organisation  cannot  evade  the  categories 
of  space  and  time.  But  all  these  elements,  however 
important,  are  not  of  primary  significance.  The 
broad  fact  remains  that  in  any  given  country  there  is 
a  man  or  a  group  of  men  who  can  impose  on  others 
material  constraint.  It  therefore  follows  that  power 
is  not  a  right  but  simply  an  ability  to  act.  Right 
could  be  assumed  when  we  believe  that  it  came  from 
a  divine  investiture  or  from  a  delegation  of  a  col- 
lective personality  and  as  such  had  a  will  superior 
to  individual  wills.  To-day,  however,  these  religious 
and  metaphysical  beliefs  have  passed  away.  The 
power  of  governmental  control  is  no  longer  a  right 
but  simply  a  power  to  act.  If  the  right  of  govern- 
ment has  passed  away,  its  obligations  remain.  In 
every  age  the  mass  of  men  felt  that  the  holders  of 
power  could  not  legitimately  exact  obedience  save  in 


PUBLIO  SERVICE  41 

return  for  certain  services  and  to  the  degree  in  which 
they  perform  those  services.  Times  without  number 
social  classes  have  lost  political  power  because  they 
no  longer  rendered  the  social  services  which  were 
the  conditions  of  its  existence.8  This  feeling,  long 
dimly  felt  by  men,  is  to-day  everywhere  understood. 
That  is  why  we  do  not  merely  affirm  it  but  rather 
search  eagerly  to  determine,  as  the  essential  problem 
of  the  modern  state,  the  legal  basis  of  these  obliga- 
tions. It  would  of  course  be  easy  to  postulate  a 
moral  obligation  based  on  one  or  other  of  current 
ethical  systems.  But  no  ethical  system  escapes  criti- 
cism. Any  ethical  solution  is  the  result  of  a  per- 
sonal impression,  what  it  is  fashionable  to  call  an 
intuition,  and  not  from  a  rigidly  scientific  affirmation. 
The  modern  mind  demands  for  its  social  problem 
clear  solutions  based  upon  the  seasoned  observation 
of  facts.  It  is  not  moreover  a  merely  moral  obliga- 
tion that  is  imposed  on  government;  it  is  also  a  legal 
obligation  which  can  be  given  a  scientifically  organ- 
ised sanction.  When  this  scientific  sanction  exists 
we  have  the  right  to  assume  that  the  legal  obligation 
of  government  is  a  reality. 

It  is  probable  that  when  individualism  was  the 
current  doctrine  the  right  of  the  individual  himself 
could  give  rise  to  a  legal  obligation  on  the  part  of 
government.  To-day,  however,  individualism  is  seen 
to  be  not  less  precarious  than  any  other  ethical  sys- 

8  [See  this  well  put  in  Mr.  Brooks  Adams'  Theory  of  Social 
Revolutions,  1913.] 


42         LAW    IN    THE    MODERN    STATE 

tern  since  it  is  at  bottom  simply  a  metaphysical  hy- 
pothesis. Nor  can  it  give  rise  to  any  other  than  a 
negative  obligation  when  our  requirement  is  some- 
thing positive.  Rousseau,  the  high  priest  of  indi- 
vidualism, realised  this  when  he  admitted  that  the 
right  of  the  individual  cannot  limit  the  omnipotence 
of  the  general  will.  "It  is  contrary  to  the  nature  of 
the  body  politic,"  he  said,9  "for  the  sovereign  to  im- 
pose a  law  he  cannot  enforce."  If,  then,  government 
is  that  which  has  the  greatest  power  of  constraint,  can 
they  be  bound  by  laws  so  superior  in  efficacy  as  to 
impose  upon  them  negative  and  positive  obligations? 
If  their  actions  are  thus  limited  do  they  still  possess 
supreme  power?  Is  it  a  contradiction  in  terms  to 
speak  of  legal  obligations  imposed  upon  supreme 
power?  German  theorists  would  seem  to  accept  this 
standpoint.  Like  Seydel,10  they  urge  "that  it  is  an 
undoubted  truth  that  there  is  no  right  without  sov- 
ereignty, above  sovereignty,  or  coequal  with  it.  Sov- 
ereignty makes  law." 

This  is  in  no  sense  true.  To  the  modern  mind  such 
a  conclusion  generates  no  more  than  protest.  Since, 
at  bottom,  law  is  the  creation  of  the  human  conscience 
it  may  be  asserted  that  legal  obligations  are  imposed 
on  government  simply  because  we  are  to-day  deter- 
mined that  it  shall  not  be  otherwise.  We  may,  as- 
sert that  fact  because,  as  I  shall  show,  we  have  spon- 
taneously organised  the  institutions  of  the  modern 

9  Social  Contract,  Bk.  I,  chap.  vii. 

10  Grundziige  einer  Allgemeine  Staatslehre  (1873),  p.  14, 


PUBLIC    SERVICE  43 

state  simply  to  give  a  positive  sanction  to  these  obli- 
gations. Sociological  jurisprudence  has  sought  to 
determine  the  facts  from  which  they  are  derived. 
Personally,  it  seems  to  me  clear  that  its  real  basis  is 
social  interdependence.11  That  attitude  doubtless  is 
open  to  serious  objections;  the  fact  still  remains  that 
it  is  a  conception  which  provides  a  suggestive  solu- 
tion to  our  problem.  It  is  important,  moreover,  that 
this  idea  of  governmental  obligation  should  be  so 
widespread.  Law  and  the  rule  of  law  are  derived 
from  the  piofound  belief  of  the  mass  of  men,  that 
a  given  rule  is  imperative,  that  a  certain  task  must 
be  accomplished.  Law,  in  brief,  is  above  everything 
the  psychological  creation  of  men  determined  by 
their  material,  intellectual,  and  moral  needs.  That 
does  not  affirm  the  existence  of  a  social  conscience 
distinct  from  individual  consciences.  So  to  affirm 
would  be  to  enter  upon  a  dangerous  metaphysical 
adventure. 

If  it  is  certain  that  governmental  power,  has  very 
diverse  causes,  material,  economic,  moral,  religious, 
it  seems  equally  clear  that  it  can  only  maintain  itself 
in  any  durable  fashion  through  the  belief  of  its  sub- 
jects that  their  rulers  perform  their  functions.  This 
is  true  whether  the  belief  is  accurate  or  not.  Super- 
stition and  ignorance  may  well  make  a  government 
seem  profitable  to  its  subjects  when  in  fact  it  is  not. 
There  has  been  a  vital  element  of  political  power  and 

11  Cf.  my  L'Etat,  Vol.  I,  p.  23f.  Traite  de  Droit  Constitu- 
tionnel,  Vol.  I,  p.  14f, 


44         LAW    IN    THE    MODERN    STATE 

public  law  which,  it  is  worth  noting,  is  quite  outside 
the  realm  of  the  social  contract.  That  theory  sug- 
gested that  men  united  by  an  agreement  and  gave  up 
their  natural  isolation;  so  was  born  a  sovereignty  and 
collective  will  which  constitutes  government.  The 
fact,  on  the  contrary,  is  that  we  have  to  start  with  a 
social  group.  The  distinction  between  rulers  and 
subjects  is  spontaneously  produced  and  the  former's 
power  is  imposed  on  the  latter  to  a  degree  which  va- 
ries with  the  belief  and  its  utility. 

There  exists  then  an  intimate  relation  between  the 
possession  of  power  and  the  obligation  to  perform 
certain  services.  It  is  a  relation  so  clearly  under- 
stood and  desired  as  in  itself  to  provide  a  sufficient 
basis  for  the  legal  duties  of  government.  All  over 
the  world  to-day  every  ruler,  emperor,  king,  presi- 
dent, minister,  parliament,  holds  power  not  for  his 
own  but  for  his  subjects'  advantage,  and  the  idea  is  so 
widespread  that  every  statesman  repeats  it  to  nause- 
ation  even  while  in  fact  he  tries  to  obtain  the  greatest 
advantage  from  his  position. 


IV 


Public  services  are  those  activities  that  the  govern- 
ment is  bound  to  perform.  What  are  the  nature  and 
extent  of  these  functions?  To  this  question,  as  I 
pointed  out  in  1911,  no  general  answer  is  possible. 
"The  content  of  public  services  is  always  varying 


PUBLIC    SERVICE  45 

and  in  a  state  of  flux.  It  is  even  difficult  to  define  the 
general  direction  of  such  change.  All  that  can  be 
said  is  that  with  the  development  of  civilisation  the 
number  of  activities  related  to  public  need  grows  and 
as  a  consequence  the  number  of  public  services  grows 
also.  That  is  logical  enough.  Indeed,  civilisation 
itself  is  simply  the  growth  of  all  kinds  of  needs  that 
can  be  satisfied  in  the  least  time.  As  a  consequence, 
governmental  intervention  becomes  normally  more 
frequent  with  the  growth  of  civilisation  simply  be- 
cause government  alone  can  make  civilisation  a  thing 
of  meaning."  12 

I  have  observed  above  that  the  government  must  at 
every  time  perform  three  functions:  (i)  National 
defence;  (2)  the  maintenance  of  internal  security  and 
order,  and  (3)  justice.  To-day  these  services  are  not 
enough.  There  are  indeed  some  economists  of  the 
study  antiquated  enough  to  say  that  the  state  has  no 
other  function  than  defence,  police  and  justice,  and 
that  all  other  activities  must  be  left  to  individual  ar- 
rangement which  usually  assures  a  satisfaction  of  all 
social  needs.  For  such  theories  the  facts  are  too 
strong;  the  modern  attitude  refuses  to  accept  them. 
It  has  other  demands,  as,  for  example,  a  demand  that 
the  state  no  longer  regard  education  as  a  private  af- 
fair and,  in  the  material  field,  that  the  state  organise 
the  work  of  charity. 

The  profound  economic  and  industrial  change  that 

12  Of.  my  Traite  de  Droit  Constitutionnel,  Vol.  I,  pp.  100-1. 


46         LAW    IN    THE    MODERN    STATED 

has  taken  place  over  the  world  has  created  new  gov- 
ernmental obligations.13  The  clear  interdependence 
of  peoples,  the  solidarity  of  economic  interests,  grow- 
ing commercial  relations,  the  circulation  on  all  hands 
of  intellectual  ideas  and  scientific  discoveries,  im- 
pose on  the  state  the  duty  of  organizing  such  public 
services  as  will  permanently  assure  international  com- 
munication. So  in  the  modern  state  the  postal  and 
telegraph  system  has  become  a  public  service  of  pri- 
mary importance.  That  service,  indeed,  brings  out 
clearly  the  legal  nature  of  the  obligation  internally 
and  internationally,  that  is  imposed  upon  the  modern 
state.  It  shows  the  solidarity  of  the  rights  and  obli- 
gations by  which  nations  are  linked  together. 

Within  each  state,  an  economic  transformation  has 
occurred  which  may  be  briefly  characterised  by  say- 
ing that  in  almost  every  field  of  activity  a  national 
economy  has  replaced  a  domestic  economy.  As  a  re- 
sult, men  of  the  same  social  group  are  made  more  de- 
pendent upon  one  another  even  for  their  daily  and 
elementary  needs.  For  these  purposes  the  family 
group  is  hardly  sufficient.  Its  external  relations 
have  become  essential  and  the  activity  of  those  rela- 
tions is  too  vital  to  admit  of  interruption.  It  has 
become  the  business  of  government  to  ensure  their 
permanence. 

Examples  could  be  given  to  repletion.     The  time 

13  [For  the  history  of  this  change  in  England  cf.  Dicey,  Law 
and  Public  Opinion  (2nd  edition),  especially  the  Introduction. 
For  France  cf.  Weill,  Histoire  du  Mouvement  Social.] 


PUBLIC    SERVICE  47 

has  passed  when  each  man  was  his  own  public  car- 
rier. To-day  to  whatever  social  class  he  belongs  he 
looks  for  transportation,  whether  of  himself  or  of  his 
possessions,  to  groups  charged  with  this  service. 
Both  our  habits  and  our  economic  needs  cannot  suf- 
fer even  the  shortest  suspension;  and  this  makes  plain 
every  day  the  greater  necessity  of  organizing  trans- 
portation into  a  public  service.  In  the  great  towns 
we  need  tramways  and  a  public  motor  service; 
throughout  the  country  we  need  railway  service. 
Transportation,  like  the  post  office,  tends  to  become 
international  in  character.  Not  only  public  lighting 
but  also  private  have  been  similarly  transformed. 
The  peasant  in  the  Hinterland  of  Auvergne  and  Brit- 
tany is  no  longer  content  with  the  little  oil  or  wax 
candle  by  which  his  parents'  home  was  lighted.  The 
time  is  not  far  distant  when  every  house  will  demand 
electric  light.  So  soon  as  this  becomes  a  primary 
need  it  will  create  a  new  subject  of  public  service. 
The  invention  of  white  oil  has  caused  an  economic 
and  industrial  revolution  which  is  only  at  its  begin- 
ning; and  the  transportation  of  electric  energy  will 
certainly  be  governmentally  organized  in  the  near  fu- 
ture. It  is  this  that  explains  the  great  law  of  June 
15,  1906,  on  the  distribution  of  electric  energy. 

We  need  not  insist  on  these  economic  considera- 
tions. What  they  show  in  brief  is  how  law  evolves 
under  the  empire  above  all  of  economic  needs.  I 
have  shown  how  the  theory  of  sovereignty  suffered 
eclipse  immediately  it  was  understood  that  the  duty 


48         LAW    IN    THE    MODERN    STATE 

of  the  state  was  something  more  than  defence  and  in- 
ternal tranquillity.  It  is  to-day  clear  that  the  policy 
of  the  state  must  be  determined  by  its  total  environ- 
ment. A  public  service,  then,  may  be  defined  as  fol- 
lows: Any  activity  that  has  to  be  governmentally 
regulated  and  controlled  because  it  is  indispensable 
to  the  realisation  and  development  of  social  solidarity 
is  a  public  service  so  long  as  it  is  of  such  a  nature  that 
it  cannot  be  assured  save  by  governmental  interven- 
tion. 

Were  there  need  of  a  formal  criterion  by  which 
such  service  as  needs  to  be  publicly  organized  could 
be  determined,  I  should  suggest  that  it  is  to  be  found 
in  the  social  disorder  that  results  in  the  suspension 
even  for  a  short  time  of  that  service.  In  October, 
1910,  for  example,  the  French  railway  strike,  partial 
and  short-lived  though  it  was,  showed  clearly  that 
railroad  transport  has  every  element  of  a  public  serv- 
ice. Similarly,  the  English  miners'  strike  of  1912, 
by  the  disaster  that  it  might  well  have  entailed, 
showed  that  the  time  is  coming  when  the  coal  miners 
must  be  organised  as  a  public  service,  and  when  Mr. 
Asquith  persuaded  parliament  to  impose  upon  the 
coal  owners  the  duty  of  establishing  a  minimum  wage 
he  took  the  first  step  towards  their  transformation 
into  a  public  service. 

V 

Such  is  the  nature  of  the  profound  change  that  is 
taking  place  in  public  law.  Public  law  is  no  longer 


PUBLIC    SERVICE  4-9 

a  mass  of  rules  which,  applied  by  a  sovereign  person 
with  the  right  to  command,  determine  its  relations 
between  the  individuals  and  groups  on  a  given  terri- 
tory as  a  sovereign  dealing  with  its  subjects.  The 
modern  theory  of  the  state  envisages  a  mass  of  rules 
which  govern  the  organisation  of  public  utilities  and 
assure  their  regular  and  uninterrupted  function. 

The  relations  of  sovereign  to  subject  do  not  make 
their  appearance.  The  one  governmental  rule  is  the 
governmental  obligation  to  organize  and  control  pub- 
lic services  in  such  a  fashion  as  to  avoid  all  disloca- 
tion. 

The  jasis  nf  public  law  is  therefore  no  longer  com- 1 
mand  but  organi&atkua.     Public  law  has  become  ob- 


jective jusraTprTv^te  law  is  no  longer  based  on  indi- 
vidual right  or  the  autonomy  of  a  private  will,  but 
upon  the  idea  of  a  social  function  imposed  on  every 
person.  So  government  has  in  its  turn  a  social  func- 
tion to  fulfil. 

The  consequences  of  this  conception  are  immedi- 
ately clear.  Their  detailed  examination  will  show 
that  the  formula  I  have  suggested  is  npt  merely  a 
theory  but  actually  an  induction  from  the  facts.  It 
follows  that  if  governmental  action  is  not  the  exer- 
cise of  a  right  to  power  it  has  no  special  character. 
What  quality  it  possesses,  what  effect  it  produces  are 
derived  from  the  end  it  has  in  view.  This  in  its  turn 
determines  the  nature  of  law.  In  all  the  imperialist 
system  law  is  essentially  the  manifestation  of  sov- 
ereignty. It  is  above  all  a  command  formulated  bj 


50         LAW    IN    THE    MODERN    STATE 

the   sovereign   and   so   imposed   upon  his   subjects. 
That  is  no  longer  the  case.     Lawjs  simply 
mulation  of  a-ule  the  product 


ra^!TWKcF'government  belieyeaJiecessary,  as  a  rule, 
'uncler  the  pressure  of  public  opinion/in  order  to  give 
itself  the  greatesFpossible  strength.  Most  laws  are 
irTreality  passed  to  organize  and  operate  public  util- 
ities. Law  is  thus  above  all  a  law  of  public  service. 

The  importance  of  this  theory  is  obvious.  It  sets 
the  method  in  which  law  to-day  functions  in  a  clear 
light.  Government  is  legally  obliged  to  ensure  the 
operation  of  public  utilities.  It  issues  for  this  pur- 
pose general  rules  called  laws.  Their  character  is 
derived  from  the  end  government  sets  before  itself. 
The  rulers  themselves  are  inviolable.  The  private 
citizen  can  only  use  a  public  service  as  the  law  pro- 
vides and  government  can  do  nothing  which  may  pre- 
vent its  legal  operation.  That  is  to  say  that  public 
utilities  are  institutions  of  objective  law.14 

Administration  thus  takes  its  character  from  its 
relation  to  an  end  connected  with  a  public  utility. 
We  must,  of  course,  distinguish  between  administra- 
tion property  called  and  an  act  performed  by  a  hum- 
ble servant  of  that  government.  Both  of  them,  how- 
ever, have  a  character  in  common  that  is  derived 
from  the  purpose  by  which  they  are  determined. 
We  need,  therefore,  make  no  distinction  between  the 
different  kinds  of  administrative  acts.  Above  all, 

14  Cf.  Hauriou,  Droit  Administratif  (5th  ed.),  p.  If;  and 
Principes  de  Droit  Public  (1910),  p.  124f. 


PUB  LIC    SERVICE  Ji 

we  need  make  no  distinction  between  acts  of  admin- 
istrative authority  and  those  in  which  the  humble 
official  merely  carries  out  his  superior's  will. 

Public  utilities  have  thus  an  objective  character. 
The  law  which  governs  them  is  only  the  recognition 
and  operation  of  a  general  governmental  duty.  All 
administrative  acts  have  a  similar  character  because 
they  serve  a  similar  and  public  end.  In  these  for- 
mulae the  new  system  may  be  resumed.  Government 
and  its  officials  are  no  longer  the  masters  of  men  im- 
posing the  sovereign  will  on  their  subjects.  They 
are  no  longer  the  organs  of  a  corporate  person  issu- 
ing its  commands.  They  are  simply  the  managers 
of  the  nation's  business.  It  should  thus  be  clear, 
contrary  to  the  usual  notion,  that  the  growth  and 
extension  of  state  activity  does  not  necessarily  in- 
crease the  government's  power.  Their  business  in- 
creases, their  duties  expand;  but  their  right  of  con- 
trol is  extinct  because  no  one  any  longer  believes 
in  it. 

It  is  true  that  the  organisation  and  functioning  of 
public  utilities  is  expensive.  Government  has  an 
immense  budget,  and  wealth  is  the  main  element  in 
power.  It  is  indubitable  also  that  the  growth  and 
extension  of  state-functions  increase  simultaneously 
both  taxation  and  the  area  of  governmental  control. 
It  may  be  added  that  since,  in  a  democracy,  election 
is  the  source  of  power,  and  since  the  number  of  offi- 
cials increases  necessarily  with  the  number  of  serv- 
ices, political  considerations  make  their  way  in  per- 


52         LAW    IN    THE    MODERN    STATE 

nicious  fashion  into  the  realm  of  administration.  If 
state  intervention  is  regrettable  under  any  system  it 
is  deadly  in  a  democratic  regime. 

There  is  truth  in  all  this,  but  it  does  not  alter  the 
fact.  Day  by  day  the  intervention  of  the  state  grows 
greater.  Theoretically  it  cannot  increase  the  right 
of  the  government  to  power,  for  it  has  no  such  right. 
But  it  is  difficult  to  deny  that  its  power  is  in  fact  in- 
creased. On  the  other  hand  is  the  important  fact 
that  this  increase  of  power  is  counterbalanced,  if 
not  outweighed,  by  the  movement  towards  decentral- 
isation which  is  becoming  one  of  the  main  character- 
istics of  governmental  evolution. 

To  add  to  the  functions  of  government  is  to  bring 
some  service  under  its  control  with  the  guarantee  that 
it  is  to  be  operated  without  interruption.  That,  how- 
ever, does  not  involve  the  immediate  and  direct  sub- 
jection of  its  officials  to  government  control.  On  the 
contrary,  in  many  old  and  some  new  services  there  is 
coming  more  and  more  to  be  established  a  system  of 
decentralisation  under  divers  forms.  In  some  cases 
the  method  has  been  that  of  local  territorial  decen- 
tralisation where  the  civil  service  has  a  regional  at- 
tachment of  a  more  or  less  rigid  character.  Some- 
times it  is  patrimonial,  as  where  a  definite  service  is 
handed  over  to  the  management  of  an  autonomous 
group  of  officials.  Sometimes,  again,  there  is  a  kind 
of  administrative  syndicalism  in  which  the  technical 
experts  of  the  particular  service  have  a  certain  right 
of  direction.  Finally,  its  operation  may  be  entrusted 


PUBLIC    SERVICE  $3 

to  a  private  citizen  acting  under  government  control. 

Alongside  this  decentralization  a  movement,  of  a 
similar  kind,  which  may  be  called  the  industrialisa- 
tion of  government  activity  has  evolved.  It  acts,  of 
course,  only  in  those  services  which  have  an  inher- 
ently industrial  character,  such  as  transportation, 
railways,  and  the  post-office.  Where,  in  France,  the 
railways  have  been  handed  over  to  private  compa- 
nies, this  involves  also  the  concession  of  a  special  in- 
dustrial organisation,  and  it  is  only  by  its  mainte- 
nance that  the  companies  can  make  their  profits;  for 
this  concession  is  in  reality  the  same  thing  as  gov- 
ernmental control.  Where  the  state  itself  manages 
the  particular  service,  it  tends  necessarily  to  be  organ- 
ised simply  upon  an  industrial  basis.  It  is  necessary 
at  all  costs  to  shield  it  from  the  poisonous  influence 
of  politics  to  prevent  the  disorganisation  and  the 
financial  dishonesty  which  invariably  result.  It  is 
clearly  necessary  that  the  great  railway  district 
should  provide  continuous  service  and  when  it  is  un- 
der government  control  that  can  only  be  achieved  by 
administrative  and  financial  autonomy. 

It  is  in  this  direction  that  we  have  begun  to  travel 
with  the  law  of  July  13,  191 1,  the  principle  is  clearly 
formulated  in  Article  41,  §  i.  "The  system  of  lines 
which  constitute  the  state  railway  system  (the  com- 
bination of  the  former  state  railways  with  the  lines 
purchased  in  the  West)  together  with  all  those  that 
shall  be  added  by  future  legislation  shall  be  man- 
aged by  a  single  administration  under  the  authority 


54         LAW    IN    THE    MODERN    STATE 

of  the  Minister  of  Public  Works  accounting  to  the 
state  and  endowed  with  civil  personality."  It  will 
soon  be  necessary  to  give  an  organisation  based  on 
similar  principles  to  the  postal,  telegraph  and  tele- 
phone system,  and  similarly  with  all  public  serv- 
ices of  an  industrial  nature.  In  Article  33  seq.  of  the 
same  law  the  department  dealing  with  gunpowder 
and  saltpetre  has  been  industrialized  to  some  extent. 
On  June  26,  1910,  the  Chamber  of  Deputies  heard 
with  amazement  the  suggestion  of  M.  Steeg,  then  a 
private  member,  "to  give  independence  to  the  postal 
and  telegraph  service  that  it  may  be  operated  as  a 
definite  industry."  15 

In  whatever  manner  the  business  of  the  state  is 
managed  its  fundamental  idea  is  thus  clear :  govern- 
ment must  perform  certain  definite  functions.  As  a 
consequence  a  public  service  is  an  institution  of  a 
rigorously  objective  order  controlled  by  principles 
equally  imposed  on  the  government  and  its  subjects. 


VI 


If  all  this  is  true,  certain  results  clearly  follow. 
The  legislation  and  jurisprudence  of  such  countries 
as  are  influenced  by  this  movement  ought  to  tend  to- 
wards the  organisation  of  a  practical  system  which 
shall  indirectly  constrain  government  to  transform 
such  activities  as  relate  to  urgent  public  needs  into 

15  Cf.  Alcindor,  Revue  de  Science  et  de  Legislation  Financiere, 
July-Sept.,  1910. 


PUB  LIC    SERVICE  55 

public  services.  The  private  citizen  demands  a 
guarantee  that  the  service  with  which  he  is  provided 
shall  proceed  accordingly  to  law.  And  it  is  exactly 
this  evolution  that  is  taking  place  in  French  legisla- 
tion and  jurisprudence.  A  whole  juristic  edifice,  of 
which  the  large  outlines  are  already  clear,  is  being 
constructed  towards  this  end.  That  surely  is  the  best 
proof  that  our  theories  are  no  mere  abstraction  but 
the  accurate  expression  of  definite  facts. 

If  any  public  need  ought,  as  the  legal  conscience  of 
a  people  believes,  to  be  organised  into  a  public  serv- 
ice, and  if  government  refuses  to  act  towards  that 
end,  what  legal  appeal  lies  open  to  the  private  citi- 
zen? Undoubtedly,  the  idea  still  dominant  in  pub- 
lic law  is  that  the  real  guarantee  is  to  be  found  in  the 
electoral  and  representative  system  existing  to-day,  in 
different  degrees,  in  every  civilised  country  in  the 
world.  Upon  that,  for  the  most  part,  the  private  cit- 
izen must  depend. 

But  there  are  still  strange  illusions  abroad  as  to  the 
benefits  of  this  system  and  the  guarantees  it  can  af- 
ford. Of  course,  this  widespread  belief  is  in  itself  a 
precious  weapon  in  the  hands  of  private  citizens. 
The  press,  can  bring  the  strongest  influence  to  bear 
on  parliament;  and  if  public  opinion  rather  easily 
accepts  the  abstention  of  the  legislator  from  action, 
on  the  other  hand  it  is  rare  for  government  to  remain 
inactive  when  its  intervention  is  imperiously  de- 
manded. 

But  if,  after  all,  the  government  will  not  intervene 


56         LAW    IN    THE    MODERN    STATE 

when  it  seems  clear  that  its  indifference  will  cause 
serious  dislocation,  even  for  a  short  time,  the  private 
citizen  is  not  entirely  helpless.  A  new  legal  institu- 
tion is  in  process  of  construction  which,  in  accord 
with  the  usual  terminology,  we  may  call  the  respon- 
sibility of  the  state.  Here,  indeed,  is  the  great  fact 
of  modern  public  law,  a  fact  totally  foreign  to  the 
imperialist  theory  of  the  state.  The  abstention  of 
the  state  involves  responsibility  on  its  part  to  the  citi- 
zens harmed  thereby,  even  when  the  state  abstains 
in  its  legislative  capacity.  If  we  merely  note  the 
capital  importance  of  this  change,  it  is  not  because  a 
fuller  discussion  is  not  required/ 

Because  a  statute  has  been  passed  to  organise  a 
public  service  and  secure  its  operation,  it  possesses 
no  infallibility.  It  can  be  attacked  simply  because 
law  is  no  longer  the  command  of  a  sovereign  will  but 
the  totality  of  measures  taken  in  a  general  way  to  se- 
cure the  continuity  of  a  public  service.  That  is  why 
every  country  tends  to  organise  means  of  defence 
against  statutes.  The  details  of  these  means  I  shall 
discuss  in  the  next  chapter. 

But  let  us  suppose  that  the  law  has  been  passed  and 
the  public  service  is  in  operation.  Even  when  it 
functions  according  to  statute,  the  private  citizen, 
where  its  operation  causes  him  damage,  is  not  de- 
prived of  redress.  The  great  development  of  public 
responsibility  is  here,  as  we  shall  see,  thrown  into  its 
most  striking  relief. 

If  the  public  service  either  functions  contrary  to 


PUBLIC    SERVICE  57 

statute,  or  is  not  put  into  operation  where  the  law 
demands  it,  if,  in  brief,  the  law  of  service  is  violated, 
the  responsibility  of  the  state  is  called  into  play  at 
the  private  citizen's  demand,  if,  of  course,  he  has  been 
injured.  Even  when  there  is  no  proof  of  direct 
prejudice,  the  law  still  gives  the  private  citizen  the 
means  of  legal  action.  The  importance  of  this  is  the 
clear  light  it  throws  upon  the  nature  of  public  serv- 
ices. This  action  is  important  and  entirely  objective 
in  character. 

Take  such  a  question  as  the  following:  has  the  pri- 
vate citizen  the  right  to  demand  the  operation  of  pub- 
lic services  in  accordance  with  statute?  This  ques- 
tion has  been  several  times  discussed  before  the  Coun- 
cil of  State  by  the  representatives  of  the  Department 
of  Justice.  In  one  of  the  first  of  these  cases  M.  Ro- 
mieu,  then  counsel  for  government,  argued  as  fol- 
lows:16 "We  must  then  enquire  if  users  have  any 
right  to  demand  the  intervention  of  the  administra- 
tion." So  put,  the  question  hardly  brings  out  the 
real  bearing  of  the  problem  or,  at  least,  it  is  so  put 
as  to  be  susceptible  of  confusion.  The  question  as 
to  whether  there  exists  any  right  by  reason  of  which 
the  private  citizen  can  demand  the  operation  of  a 
public  service  according  to  law  involves  the  question 
of  the  bond  existing  between  the  state  and  the  pri- 
vate citizen  in  virtue  of  which  he  can  compel  it  to 
perform  the  duties  enjoined  by  statute.  This  he 

16  Affaire  Croix  de  Seguey-Tivoli,  Decision  of  Dec.  21,  1906, 
Sirey,  p.  968, 


58         LAW    IN    THE    MODERN    STATE 

clearly  cannot  do;  and  this  inaccurate  terminology 
explains  the  hesitation  so  clearly  felt  by  the  govern- 
ment representatives. 

The  facts  are  the  strongest  feature  of  the  situation. 
Under  their  empire  there  is  growing  up  a  new  rule  of 
law  and  a  new  procedure  as  a  result  of  which  action 
may  be  made  compulsory.  The  basis  of  the  forma- 
tion is  as  follows :  the  creation  and  organisation  of  a 
public  service  involves  its  due  operation  according  to 
law.  Should  the  administration  act  contrary  to  it, 
every  private  citizen  can  by  means  of  an  action  have 
that  act  annulled.  This  is  legal  redress  of  a  purely 
objective  kind.  That  is  to  say  that  the  private  citi- 
zen does  not  and  cannot  ask  that  the  state  should  be 
compelled  to  ensure  the  regular  operation  of  the 
service;  all  he  can  ask  is  that  the  illegal  administra- 
tion be  annulled. 

No  legal  bond  exists  between  the  state  and  the  pri- 
vate citizen  which  obliges  the  state  to  fulfil  his  de- 
mands, but  a  law,  that  is  to  say,  a  purely  general  regu- 
lation, controls  the  operation  of  the  service  and  if  the 
state  violates  that  law  its  illegal  act  can  be  annulled. 
This  is  true  whatever  the  service  and  however  it  is 
operated.  There  is  no  distinction  between  services 
directly  connected  with  public  authority  and  services 
in  which  the  humble  civil  servants  merely  fulfil  the 
command  of  their  superiors.  There  is  no  distinction 
between  a  public  service  directly  managed,  decen- 
tralized or  operated  by  delegation.  The  Council  of 
State  has  hesitated  and  its  formulas  are  not  always 


PUBLIC    SERVICE  59 

above  criticism.  But  the  facts  have  triumphed  and 
the  legal  principle  I  have  just  described  may  be  con- 
sidered to-day  as  finally  established. 

We  cannot  here  analyse  in  detail  the  jurisprudence 
of  the  Council  of  State  upon  this  point.  We  can 
only  note  that  it  is,  above  all  other  methods,  that 
which  is  coming  to  control  the  evolution  of  public 
law.  Any  realistic  study,  certainly,  must  be  based 
upon  it;  otherwise  the  solution  proposed  is  merely 
formal  and  biased  by  its  artificial  preconceptions. 
The  statement  of  its  most  characteristic  decisions  may 
serve  to  make  this  clear. 

The  first  three  related  to  somewhat  peculiar  cir- 
cumstances. A  public  transportation  system  was  op- 
erated by  delegation  to  a  company.17  The  question 
involved  was  whether  the  public  may  sue  on  the 
ground  of  ultra  vires  for  acts  by  which  the  control- 
ling authority  refuses  to  exercise  his  power  or  violates 
the  law  involved.  If  he  can  so  sue,  clearly,  the  pri- 
vate citizen  has  always  a  legal  means  of  preventing 
violation  of  statute  even  when  the  act  of  violation  is 
that  of  the  civil  servant  in  control.  Not  without  hes- 
itation, the  Council  of  State,  in  the  three  cases  con- 
cerned, admitted  that  the  plea  can  be  received.  On 
February  4,  1906,  they  heard  the  plea  of  the  residents 
of  the  Rue  Quatre-Septembre  against  a  decree  issued 
by  the  Prefect  of  the  Seine  on  August  25, 1902,  which, 

17  By  the  law  of  June  11,  1880,  Articles  21  and  39,  the  French 
tramway  services,  however  managed,  are  under  the  strict  control 
of  the  prefects  as  government  representatives. 


60         LAW    IN    THE    MODERN    STATE 

contrary  to  the  law,  authorized  the  East  Paris  Rail- 
way Company  to  erect  an  overhead  railway  over  the 
surface  of  the  Opera-Place  de  la  Republique.  The 
plea  was  admitted.18 

In  the  next  year  the  Council  went  a  step  further. 
In  the  earlier  cases  the  plaintiffs  had  attacked  a  spon- 
taneous and  positive  act  of  the  administrative  author- 
ity. In  the  case  of  the  Syndicat  Croix  de  Seguey- 
Tivoli,  they  attacked  the  refusal  of  a  prefect  to  pre- 
vent, at  their  request,  and  conformably  to  his  duties, 
a  tramway  company  from  giving  up  a  car  service 
which,  it  was  claimed,  would  have  been  suppressed 
contrary  to  the  conditions  of  the  company's  charter. 
The  Council  of  State  admitted  the  plea.19 

In  1907  it  admitted  the  plea  of  an  officer,  long  dis- 
missed, against  a  decision  of  the  Minister  for  War. 
The  latter  had  refused  to  compel  the  Western  Rail- 
way Company  to  give  the  officer  a  ticket  at  the  re- 
duced price  which  article  54  of  its  bye-laws  demands. 
He  claimed  that  this  was  illegal ;  and  the  remarkable 
conclusions  of  M.  Teissier  urged  that  any  person 
whose  interests  are  thereby  adversely  affected  may 
attack  an  administrative  act  which  is  contrary  to  the 
charter  of  a  railway  company.  That  charter,  the 
decision  holds,  is  part  of  its  organic  law.2 


20 


"Conseil  d'Etat,  Feb.  4,  1805.    Recueil,  p.  116. 

19  Council  of  State,  Dec.  21,  1906.  Recueil,  p.  961;  Sirey, 
1907,  iii,  33. 

20Conseil  d'Etat,  Nov.  15,  1907.  Recueil,  1907,  p.  820, 
Revue  de  Droit  Public,  1909,  p.  48, 


PUBLIC    SERVICE  6 II 

VII 

Private  citizens  can  thus  use  legal  means  to  obtain 
the  regular  operation  of  public  services  even  under 
private  direction.  But  the  same  rule  holds  also 
where  they  are  directly  exploited  by  the  state,  or  its 
diverse  administrative  organs.  If  the  state  had  re- 
mained a  power  which  issued  sovereign  commands, 
it  would  be  impossible  to  understand  how  a  private 
citizen  could  demand  from  a  sovereign  power  the  in- 
tervention necessary  to  secure  the  organization  of 
public  services  and  their  regular  operation.  But  if 
modern  law  organizes  guarantees  on  behalf  of  the 
private  citizen  against  the  state  itself,  if  every  one 
whose  interests  arc  concerned  has  means  of  legal  re- 
dress against  every  illegal  act  on  the  part  of  the  state, 
it  is  clear  that  public  law  is  now  based  on  a  rule  of 
conduct  which  compels  government  to  fulfil  the  obli- 
gations implied  in  public  service.21 

This  objective  admission  of  legal  recourse  against 
the  state  where  the  action  of  the  latter  is  illegal  grew 
up  under  conditions  of  great  interest  in  relation  to 
elementary  education.  It  may  be  true  that  educa- 
tional neutrality  is  a  chimera  impossible  of  realiza- 
tion. It  is  not,  however,  doubtful  that  the  idea  of 
neutrality  is  in  virtue  of  the  great  laws  of  March  28, 
1882,  and  Oct.  30,  1886,  the  essential  principle  on 

21  [The  reader  ought  to  note  that  M.  Duguit  throughout  uses 
state  as  identical  with  government,  on  the  ground  that  its  power  is, 
for  practical  purposes,  exerted  by  the  latter.  On  the  justification 
of  this  cf.  Laski,  Authority  in  the  Modern  State,  chap,  i.] 


62         LAW    IN    THE    MODERN    STATE 

the  organization  of  elementary  instruction.  How 
can  a  private  citizen  compel  the  authorities  to  give 
his  children  an  education  strictly  in  conformity  with 
the  principle  of  neutrality?  It  is  of  course  obvious 
that  if  the  violation  of  law  is  a  personal  fault  of  the 
teacher,  the  father  of  the  child  can  make  the  former 
responsible.  This  was  definitely  established  by  the 
Tribunal  of  Conflicts  (June  7,  1908)  in  the  Morizot 
case.  But  the  circumstances  are  rarely  so  clear. 
The  usual  situation  is  for  the  principle  of  neutrality 
to  be  violated  without  fault  being  ascribed  to  any 
civil  servant.  When,  for  example,  the  father  com- 
plains that  the  principle  of  neutrality  is  violated 
by  reasons  of  the  University  administration  giv- 
ing the  students  books  with  a  definite  tendency 
either  towards  actual  infidelity  or  at  least  of  an 
anti-Catholic  nature,  if  the  fact  is  true,  the  law  of 
neutrality  is  obviously  violated  without  there 
being  any  personal  fault,  in  the  legal  sense,  com- 
mitted. 

What  is  the  parent  then  to  do?  Can  he  obtain 
annulment  of  this  violation?  There  is  no  doubt  on 
that  head.  The  question  has  been  brought  before  the 
Council  of  State  and  its  decision  conforms  to  the 
general  direction  of  this  jurisprudence. 

The  question  came  up  as  a  result  of  the  demand  of 
some  parents  that  certain  academic  decisions  should 
be  annulled.  It  was  claimed  that  pupils  had  been 
expelled  because  they  refused  to  use  the  text  book 
that  was  regularly  used  in  the  school.  The  plaintiffs 


PUBLIC    SERVICE  63 

claimed  that  the  expulsion  was  wrongly  inflicted  be- 
cause the  children  had  refused  to  use  the  text  books 
by  their  parents'  orders,  since  the  text  books  hurting 
Catholic  feelings  violated  educational  neutrality.  In 
six  cases  the  Council  of  State  rejected  the  plea  on  the 
ground  that  the  legal  regulations  clearly  gave  the 
university  authorities  a  right  to  choose  both  books 
and  methods  in  the  schools,  and  that  the  children  who 
go  there  must  submit  to  their  regulations.  The  re- 
fusal of  a  pupil  so  to  conform  constitutes  the  disci- 
plinary fault  which  comes  under  the  purview  of  the 
punishments  drawn  up  to  regulate  a  management  of 
the  school.  At  the  same  time,  however,  the  Council 
of  State  pointed  out  to  parents  the  way  in  which  their 
end  could  be  obtained.  The  text  itself  of  the  de- 
cision must  be  reproduced  because  of  its  perfect  clar- 
ity and  characteristic  conclusion.  "If  parents  think 
the  school  text  books  are  drawn  up  in  violation  of 
that  principle  of  educational  neutrality  consecrated 
by  the  law  of  March,  1882,  as  a  result  of  the  lay  sys- 
tem then  inaugurated,  they  must  bring  their  claim 
before  the  competent  authorities.  Notably  they  have 
the  right  to  demand  from  the  Minister  of  Public  In- 
struction the  rejection  from  the  public  schools,  con- 
formably with  Article  4  of  the  Act  of  Feb.  27,  1880, 
of  such  books  as  may  be  found  blameworthy  and  only 
then  can  they  go  to  the  Council  of  State  on  the 
ground  of  excess  of  power." 

So  did  the  Supreme  Court  erect  for  the  benefit 
of  parents  a  completely  protective  system  against 


64         LAW    IN    THE    MODERN    STATE 


22 


all   possible  violations  of   the   law  of  neutrality. 

In  the  case  where  the  details  are  rather  interesting 
the  Council  has  provided  an  analogous  solution.  In 
appearance  the  case  was  no  more  than  a  mere  village 
quarrel;  in  fact,  it  raised  the  gravest  of  problems. 
The  case  arose  in  connection  with  the  postal  and  tele- 
graph service.  As  a  result  of  quarrels  between  the 
postmistress  and  a  householder  in  the  commune  who, 
so  the  postmistress  said,  possessed  a  savage  and  dan- 
gerous dog,  the  Under  Secretary  of  State  for  post  and 
telegraphs  decided  that  telegrams  should  no  longer 
be  delivered  to  his  house  until  he  agreed  to  put  a  box 
and  a  bell  at  the  bottom  of  his  garden.  Plaintiff 
claimed  that  the  secretary  had  gone  beyond  his  pow- 
ers. He  asserted  that  the  act  was  contrary  to  the  law 
regulating  the  telegraph  service  and  especially  con- 
trary to  the  decree  of  Jan.  12,  1899 — according  to 
which  telegrams  must  be  given  either  to  their  recipi- 
ent or  his  representative.  To  deprive  a  private  citi- 
zen of  these  advantages,  some  fault  must  be  shown 
on  the  part  of  the  recipient,  and  the  administration 
must  prove  the  fact  of  the  fault.  Since  all  these  ele- 
ments were  absent  in  the  decision,  the  Council  of 
State  annulled  the  action  of  the  Under  Secretary  and 
so  assured  to  the  citizen  the  full  and  regular  advan- 
tages of  the  service.23 

22  See  the  six  decisions,  Jan.  20,  1911,  Recueil,  pp.  75-7,  and 
April  8,  1911,  Ibid.,  pp.  481-2.  Cf.  Revue  de  Droit  Public,  1911, 
p.  69,  andSirey,  1911,  iii,  49. 

"Decision  of  Dec.  29,  1911,  Revue  de  Droit  Public,  1912,  p. 
38. 


PUBLIC    SERVICE  6$ 

This  legal  protection  of  the  private  citizen  has 
sometimes  been  indefinitely  organized  by  statute. 
The  law  of  July  15,  1883,  gives  free  medical  assist- 
ance ;  that  of  July  14,  1905,  assures  support  to  the  old, 
the  infirm  and  the  incurable.  It  is  usually  said  that 
the  law  of  1905  recognises  that  old  men  and  incur- 
able have  a  right  to  support.  That,  however,  is  not 
accurate.  The  real  fact  is  that  the  old  and  the  in- 
firm who  are  without  means  have  been  placed  in  a 
definite  legal  situation.  They  can  compel  the  an- 
nulment by  the  competent  authority  of  an  adminis- 
trative decision,  which,  when  their  age,  infirmity 
and  poverty  have  been  legally  established,  refuses  to 
them  an  allowance  or  a  lodging.  Statute  thus  estab- 
lishes for  a  definite  public  service  the  same  system  of 
legal  protection  as  the  courts  have  established  for  the 
administrative  services  in  general.  I  have  discussed 
this  jurisprudence  in  some  detail  because  of  its  novel 
spontaneity.  It  is  at  once  the  consequence  and  the 
proof  of  the  transformation  I  have  been  trying  to  de- 
scribe. Because  the  subjective  right  of  the  state  and 
the  individual  are  disappearing,  we  get  the  forma- 
tion of  an  objective  governmental  duty  in  regard  to 
public  services,  the  operation  of  which  is  legally 
guaranteed. 

I  am  glad  to  think  that,  by  different  methods  and 
in  different  terms,  so  eminent  a  publicist  as  M.  Hau- 
riou  has  arrived  at  exactly  the  same  conclusion,  when 
he  says  :24  "the  public  services  are  considered  in  re- 

2*Principes  de  Droit  Public  (1910),  p.  94. 


66         LAW    IN    THE    MODERN    STATE 

lation  to  the  public  that  makes  use  of  them  they  con- 
stitute .  .  .  established  situations.  The  public  is 
not  the  creditor  of  the  public  services ;  what  it  can  do 
is  to  profit  from  them.  Private  citizens  have  at  their 
disposal  a  practical  means  of  improving  their  situa- 
tion. They  can  formulate  a  claim  and  ask  the  Coun- 
cil of  State  to  decree  that  the  authority  has  gone  be- 
yond its  powers;  but  this  practical  means  does  not 
change  the  fact  that  the  situation  is  objective  in  char- 
acter." 

It  is  worth  adding  that  this  legal  protection  of  the 
private  citizen  has  been  guaranteed  by  statute.  The 
administration  is  practically  prohibited  from  pre- 
venting judicial  action  by  its  own  silence.  For  a 
long  time  the  government  could  prevent  a  citizen 
from  suing  it;  if  it  did  not  answer  his  request;  if  there 
was  no  administrative  act,  the  Council  of  State  could 
do  nothing.  As  early  as  the  decree  of  Nov.  2,  1864, 
some  means  of  remedy  against  this  danger  was 
achieved.  It  was  decided  that  if  a  minister,  when 
the  hierarchy  of  the  administration  was  concerned, 
does  not  answer  within  four  months  his  silence  may 
be  interpreted  as  a  refusal  and  attacked  before  the 
Council  of  State. 

This  method  has  been  generalised  by  the  Act  of 
July  14,  1900  (Article  3).  It  was  there  decided 
"that  in  such  affairs  a  case  only  can  be  brought  be- 
fore the  Council  of  State  by  means  of  an  action 
against  an  administrative  decision.  When  a  delay 
of  more  than  four  months  has  elapsed  without  a  de- 


PUBLIC    SERVICE  67 

cision  being  given  the  interested  parties  may  consider 
their  request  as  rejected  and  sue  before  the  Council  of 
State."  So  ill-will  on  the  part  of  the  administration 
cannot  prevent  the  attempt  at  redress. 

One  lacuna  in  this  subject  still  remains  to  be  filled. 
It  is  of  course  true  that  the  private  citizen  is  com- 
pletely protected  where  the  administration  is  made 
responsible  in  the  large  degree  which  is  to-day  the 
case.  The  Council  of  State  will  doubtless  annul  all 
administrative  decisions  contrary  to  the  law  under 
which  the  service  operates.  But  how  is  the  adminis- 
tration to  be  compelled  to  execute  a  decision  which 
condemns  it?  How  make  an  official  respect  a  deci- 
sion which  annuls  his  act?  How  can  he  be  prevented 
from  breaking  the  law  a  second  time?  As  a  rule,  of 
course,  the  administration  will  rarely  revolt  against 
the  legal  decision.  The  prestige  and  authority  of 
the  Council  of  State  are  so  universally  admitted  as 
to  command  general  respect  for  its  decisions.  But 
it  is  none  the  less  true  that  to-day  there  do  not  exist 
any  means  by  which  the  administration  can  be  forced 
to  conform  to  those  decisions.  It  is  essential  that  in 
the  future  these  means  should  be  organised  and  al- 
ready their  beginnings  can  be  perceived.  It  is  a 
purely  general  question  to  which  we  shall  come  later 
when  the  evolution  of  the  boundary  line  between  le- 
gal and  illegal  administrative  acts  have  been  consid- 
ered.25 

25  Cf.  chap,  vi,  below. 


CHAPTER   III 
STATUTE 

IN  any  system  of  public  law  founded  on  sovereignty, 
statute  is  its  clearest  manifestation.  Rousseau 
pointed  this  out  on  several  occasions.  By  definition 
statute  is  the  expression  of  the  general  will  dealing 
with  a  general  problem,  and  because  it  unites  the 
"universality  of  its  will  to  the  universality  of  the  ob- 
ject dealt  with,"  it  has  a  limitless  power  to  command, 
can  never  be  unjust,  and  should  obtain  an  uncondi- 
tional and  unlimited,  obedience. 

"It  is,"  wrote  Rovteseau,1  "thus  immediately  clear 
that  we  need  no  longer  ask  who  makes  the  laws. 
They  are  clearly  acts  of  the  general  will.  The 
prince  is  not  above  the  laws  because  he  is  a  member 
of  the  state,  nor  can  statutes  be  unjust  because  no  one 
is  unjust  to  himself ;  nor  need  we  ask  how  one  can 
be  free  and  yet  ruled  by  statutes,  since  they  are  only 
the  edict  of  our  will."  Thus  was  born  what  has  been 
called  the  fanatic  worship  of  statute. 

It  is  of  course  clear  that  statutes  are  necessary.  It 
is  equally  clear  that  the  flavor  of  generality  which  at- 
taches to  statutes  constitutes  the  best  guarantee  the 
individual  can  possess  against  arbitrary  conduct. 

1  Contrat  Social,  Bk.  II,  ch.  vi. 

68 


STATUTE  69 

The  essential  protection  of  liberty  is  a  principle 
which  can  only  be  individually  varied  within  cer- 
tain limits  fixed  by  a  general  will  theoretically  for- 
mulated in  advance.  In  this  aspect  the  new  system 
of  public  law  only  gives  precision  and  guarantee  to 
the  elements  of  the  earlier  system.  But,  in  the  lat- 
ter system,  as  in  Rousseau,  statute  was  the  command 
of  the  sovereign.  As  such  it*could  not  be  unjust  and 
was  not  subject  to  reserve  or  restriction.  No  tribunal 
could  take  cognisance  of  the  constitutionality  of  stat- 
ute. It  could  not  ever  be  suggested  that  the  state  in 
its  legative  capacity  was  subject  to  responsibility. 

Such  a  conception  was  in  clear  logical  accord  with 
the  imperialist  system.  But  it  is  obvious  that,  if  the 
theory  of  sovereignty  is  no  longer  the  foundation  of 
political  theory,  the  conception  is  obsolete.  If,  then, 
in  the  legal  life  of  the  modern  state  we  take  account 
of  facts  and  of  situations,  such  as  the  acceptance  of  a 
jurisdiction  which  completely  contradicts  the  theory 
of  statute  as  an  expression  of  sovereign  will,  we  can 
show  under  another  aspect  the  transformation  of  pub- 
lic law. 

I 

A  statute  is  a  general  rule  for  governing  conduct. 
But  because  we  have  to-day  eliminated  from  politics 
the  theories  of  metaphysics 2  the  hypothesis  of  na- 

2  \_Cf,  however,  F.  Geny,  Science  et  Technique  en  Droit  Prive, 
Vol.  II,  ch.  v,  where  it  is  pointed  cut  that  one  of  the  defects  of 
M.  Duguit's  work  is  the  absence  of  an  explicit  avowal  of  its  implied 
metaphysic.] 


70         LAW    IN    THE    MODERN    STATE 

tional  sovereignty,  that  of  divine  right  and  of  an  in- 
heritance from  God,  a  statute  can  no  longer  be  the 
formulated  command  of  sovereign  power.  A  statute 
]  is  simply  the  expression  of  the  individual  will  of  the 
men  who  make  it,  whether  they  be  the  leading  states- 
men or  the  private  members  of  a  legislative  body. 
Beyond  that  we  are  in  the  realm  of  fiction.  In 
France,  for  example,  statute  is  the  expression  of  the 
will  of  350  deputies  and  200  senators  who  usually 
form  the  majority  in  the  Chamber  and  in  the  Senate. 
Administrative  orders,  which  are,  in  fact,  real  laws, 
express  the  will  of  the  statesmen  or  civil  servants  who 
issue  them. 

This  realistic  conception  of  the  state  necessarily 
results  in  a  realistic  conception  of  statutes.  Of  course 
a  statute  is  universally  admitted  to  possess  an  obliga- 
tory, even  imperative,  force.  A  statute,  it  may  be,  is 
no  longer  the  order  of  a  superior  imposed  upon  an 
inferior  will.  But  it  still  remains  true  that  civil 
servants  and  private  citizens  must  obey  statutes. 
The  power  of  compulsion  at  the  disposal  of  the  gov- 
ernment may  necessarily  and  can  legitimately  be 
applied  to  ensure  obedience  to  them. 

These  are  not  contradictory  conceptions.  It  is 
clear,  as  I  have  pointed  out,  that  there  is  an  objective 
law  superior  to  government.  As  soon  as  a  human 
society  exists,  the  indispensable  condition  of  its  main- 
tenance is  a  social  discipline.  While  we  reject  meta- 
physical theory,  it  is  of  course  clear  that  the  social 


STATUTE  71 

environment  necessarily  gives  rise  to  a  rule  of  social 
conduct.  But  the  idea  of  this  social  rule  is  in  no 
sense  metaphysical.  It  does  not  transcend  society. 
So  to  argue  is  to  use  philosophical  terms  immanent 
in  it.  It  is  an  element  of  society,  or  rather  it  is  so- 
ciety itself.  We  obey  this  rule,  not  because  it  creates 
a  superior  duty,  but  simply  because  we  are,  for  good 
or  ill,  members  of  society,  and  therefore  necessarily 
subject  to  its  social  discipline.  It  is,  for  example, 
clear  that  the  rule  prohibiting  such  conduct  as  mur- 
der, pillage,  and  arson  existed  as  a  rule  of  right  be- 
fore it  was  formulated  into  positive  statute.  It  is 
clear  to  all  of  us  that  it  has  an  obligatory  character, 
not  transcendent  and  abstract,  but  based  on  the  facts 
of  life. 

Once  that  is  understood,  it  becomes  clear  why  a 
statute  compels  us  to  obedience.  It  is  not,  techni- 
cally speaking,  a  command.  It  is  yet  compelling  be- 
cause it  formulates  a  rule  of  law  which  is  itself  the 
expression  of  social  facts.  These  are  the  statutes  I 
have  elsewhere  called  normative.3  The  clearest  ex- 
amples of  them  are  penal  statutes,  or  at  least  those 
which  define  and  prohibit  certain  offences.  Penal 
laws  which  actually  fix  a  penalty  belong  to  the  char- 
acter of  constructive  statutes  which  I  shall  have  later 
to  discuss.  In  the  domain  of  civil  law  there  exist 
certain  rules  which  are  also  normative  statutes,  such 
as  those  implied  in  the  principles  of  Art.  1382  of  the 

3L'Etat,  Vol.  I,  p.  551  f. 


72         LAW    IN    THE    MODERN    STATE 

civil  code :  "Whatever  act  of  one  person  causes  dam- 
age to  another  creates  by  the  fault  concerned  a  duty 
to  repair  the  damage  that  has  been  caused."  The 
principles  inserted  in  the  different  Declarations  of 
Rights  are  often  rules  considered  superior  and  ante- 
rior to  the  legislator. 

We  say  that  normative  statutes  are  imposed  on  all 
because  they  contain  a  rule  of  law  every  ruler  recog- 
nised at  a  given  place  and  time.  This  idea  has  been 
remarkably  worked  out  by  Prof.  Dicey  in  his  fine 
book  on  Law  and  Public  Opin_ipn.4  "There  exists  at 
any  given  time  a  body  of  beliefs,  convictions,  senti- 
ments, accepted  principles,  or  firmly  rooted  preju- 
dices, which,  taken  together,  make  up  the  public 
opinion  of  a  particular  era,  or  what  we  may  call  the 
reigning  or  predominant  current  of  opinion,  and,  as 
regards  at  any  rate  the  last  three  or  four  centuries, 
and  especially  the  nineteenth  century,  the  influence 
of  this  dominant  current  of  opinion  has,  in  England, 
if  we  look  at  the  matter  broadly,  determined,  directly 
or  indirectly,  the  course  of  legislation." 

It  is  not  true  only  of  England  but  for  every  country 
in  every  age.  It  may  be  added  that  if  opinion  is  the 
essential  factor  in  the  making  of  law  it  plays  this  role 
only  when  men  think  that  a  certain  rule  is  imposed  by 
a  social  sanction.  In  other  words,  public  opinion 
only  makes  legislation  when  the  individual  minds 
that  have  formed  it  possess  juristic  content.  There 

4  Law  and  Public  Opinion  (2nd  ed.)>  p.  19. 


STATUTE  73 

comes  a  moment  when  the  clear  necessity  of  certain 
rules  is  so  profoundly  and  generally  felt  by  men  that 
every  statute  which  enacts  them  is  universally  admit- 
ted and  possesses  for  all  an  obvious  character  that  is 
obligatory.5 

It  should  be  added  that  such  normative  law  must 
not  be  confused  with  custom.  Statute  and  custom 
are  two  different  things.  Statute  is  the  expression  of 
a  rule  which  social  needs  are  elaborating  in  individ- 
ual consciences.  Sometimes,  of  course,  the  same  rule 
finds  its  first  and  imperfect  expression  in  a  custom 
to  which  statute  gives  later  a  more  precise  and  com- 
plete expression.  It  is  doubtless  true  that  the  com- 
pelling power  of  statute  and  custom  is  derived  from 
the  same  source,  but  they  represent  different  degrees 
of  the  expression  of  objective  law.  Often  the  degree 
that  custom  expresses  is  socially  defective  and  the  ob- 
jective law  is  first  and  directly  expressed  in  statute. 

It  has  been  said  that  the  reality  of  a  rule  of  conduct 
founded  on  social  independence  does  not  disguise  the 
fact  that  the  rule  itself  is  ethical  and  not  legal  in 
character.  In  itself  it  is  not  imperative  because  it 
only  becomes  imperative  when  definitely  enacted  as 
statute.  The  proof  of  this,  we  are  told,  is  that  before 
such  conduct  became  statutory  there  was  no  prohibi- 
tion of  acts  contrary  to  it.  And  acts  which  conform 
to  it  had  no  legal  result.  Positive  statute  would  then 

5  Cf.  Deslandres,  Etude  sur  le  fondement  de  la  loi,  Revue  de 
Droit  Public,  1908,  p.  33, 


74         LAW    IN    THE    MODERN    STATE 

be  more  than  the  simple  statement  of  a  social  rule. 
It  would  be  a  social  rule  to  which  a  legal  character 
had  been  given. 

It  is,  of  course,  true  that  when  there  is  no  written 
statute  or,  at  least,  no  formulated  custom,  there  does 
not  exist  for  that  rule  of  law  a  definite  legal  sanction. 
But  that  does  not  involve  the  absence  of  obligation  in 
that  rule  of  law  understood  not  as  a  command  but  as 
a  way  of  life  derived  from  the  necessities  of  social 
existence.  Nor  must  we  confuse  the  compelling 
force  of  this  rule  with  the  sanction  which  society  or- 
ganises to  ensure  its  acceptance.  The  way  in  which 
society  organises  the  sanction  is  the  subject  of  another 
kind  of  law  which  for  want  of  a  better  term  may  be 
»  called  constructive, 


II 


Constructive  laws  are  simply  those  which  organise 
public  services,  and  they  form  the  greater  part  of 
modern  legislation.  Perhaps  no  great  inconvenience 
is  involved  in  the  denial  that  normative  laws  exist; 
there  would  still  remain  the  fact  that  every  general 
disposition  of  government  which  aimed  at  the  organ- 
isation of  a  public  service  would  be  imposed  on  all 
under  the  legitimate  sanction  of  material  constraint. 
Indeed,  in  the  issuance  of  such  dispositions  govern- 
ment only  fulfils  the  social  function  incumbent  upon 
it  from  the  situation  it  occupies.  I  have  pointed  out 
that  it  is  not  necessary  to  know  if  there  is  a  rule  of 


STATUTE  75 

law  earlier  in  origin  and  superior  in  force  to  govern- 
ment. For  the  same  reason  we  need  not  enquire  if 
normative  laws  exist,  for  if  they  do  they  are  only  the 
expression  of  this  rule  of  law.  For  myself,  it  seems  \ 
clear  that  this  rule  of  law  and  the  statutes  that  are  its 
expression  have  an  actual  existence.  They  must  be 
postulated  because  we  cannot  do  without  them.  The 
very  condition  of  social  life  involves  our  organising 
certain  activities  with  public  services;  and  it  is  from 
this  that  their  operation  has  the  social  force  and  value 
involved  in  their  general  rules. 

A  conception,  Greek  in  origin,  but  full  of  impor- 
tance in  our  own  time,  is  here  important.  We  have 
to  know  why  in  the  organisation  and  operation  of 
public  services  government  must  lay  down  general 
rules  and  take  individual  action  only  within  the  scope 
of  those  general  rules. 

The  answer  is  that  this  is  the  surest  guarantee  the 
individual  possesses  against  arbitrary  action. 

So  may  be  defined  both  in  its  complexity  and  unity 
the  compelling  power  of  statute.  It  is  complex  be- 
cause it  is  based  not  only  on  the  general  character  in- 
herent in  statute,  but  also  upon  the  purpose  it  is  to 
serve.  It  is  unified  because  it  is  essentially  founded 
on  the  duty  of  government  to  assure  the  operation  of 
public  services. 

In  truth,  there  is  no  statute  which  does  not  organi- 
cally control  some  social  need  and  derive  its  power 
therefrom;  and  there  are  many  which  can  only  be 
explained  by  this  means.  This  is  true  of  all  statutes 


76         LAW    IN    THE    MODERN    STATE 

properly  called  organic,  that  is  to  say  of  all  statutes 
which  regulate  the  internal  organisation  of  the  state. 
If  we  admit  the  personality  of  the  state,  and  define 
law  as  the  command  of  its  sovereign  will,  it  is  abso- 
lutely impossible  to  understand  how  organic  laws  can 
be  really  laws  since  the  state  cannot  address  a  com- 
mand to  itself.6  On  the  other  hand,  however,  the 
compulsion  inherent  in  such  regulations  is  very  clear 
if  it  is  derived  from  the  duty  imposed  on  government 
to  organise  means  of  satisfying  social  needs.  Stat- 
utes which  serve  this  purpose  are  obligatory  in  char- 
acter simply  because  of  the  end  they  serve.  Consti- 
tutional statutes,  and  those  which  regulate  general 
administration,  are  fundamental  because  their  object 
is  to  give  the  state  the  best  means  of  serving  social 
needs. 

The  same  may  be  said  of  penal  laws.  They  are 
par  excellence  imperative  in  character;  or,  rather, 
they  are  prohibitions  addressed  to  private  citizens. 
The  more  closely  we  perceive  them  the  more  it  ap- 
pears that  they  are  not  really  an  injunction  addressed 
to  the  private  citizen.  The  legislature  does  not— 
because  it  cannot — tell  us  how  to  kill  and  rob  and  so 
forth.  It  simply  organises  a  public  means  and  set- 
tles that  if  an  act  which  it  foresees  and  defines  and 
describes  as  an  infraction  of  law  is  committed,  the 
courts  will  pronounce  a  penalty  against  the  author  of 

6  [But  in  the  German  theory,  mainly  associated  with  the  name 
of  Jellinek,  of  auto-limitation,  this  is  virtually  possible.] 


STATUTE  77 

it.  The  penal  imperative,  as  Binding  says,7  is  not 
addressed  to  private  citizens.  The  basis  of  the  right 
to  punish  cannot  be  discovered  by  knowing  on  what 
foundation  there  rests  the  right  of  society  to  say  what 
is  permitted  and  what  is  prohibited.  Government 
must  assure,  as  has  always  been  admitted,  the  in- 
ternal security  of  the  nation.  Its  penal  legisla- 
tion is  the  means  adopted  to  that  end  and  derives 
therefrom  its  character  of  legitimacy  and  compul- 
sion. 

Finally,  civil  legislation  is,  as  much  as  police  and\ 
justice,  the  institutional  satisfaction  of  a  public  need.  > 
It  may  be  asked  how  it  can  be  imperative  since  all 
civil  legislation,  and  particularly  Art.  6  of  the  Code 
Napoleon,  decides,  as  a  principle,  that  private  agree- 
ment may  abrogate  civil  legislation.    This  has  led  to 
the  argument  that  civil  legislation  concerns  the  offi- 
cers of  justice  whose  business  it  is  to  legislate  on  quar- 
rels between  private  citizens.     The  parties  to  an  ac- 
tion may  make  agreements  contrary  to  all  civil  laws 
without  affecting  public  order  or  morals ;  but  the  law 
settles  the  judge's  duty  in  very  definite  fashion.     He 
must  judge  private  relations  by  the  agreements  into 
which  the  parties  have  entered.     If  there  are  no 
agreements,  or  if  they  are  obscure,  he  must  then  settle 
the  problem  in  accordance  with  the  common  law. 
Clearly  then  the  common  law  supplies  a  public  need 
— that  of  justice.     Statutes  which  deal  with  public 
7  Binding,  Die  Normen,  I,  p.  66  (2nd  edition). 


78         LAW    IN    THE    MODERN    STATE 

order  and  morals,  like  those  relating  to  domestic  or- 
ganisation, or  the  capacity  of  parties,  and  so  forth, 
cannot  be  abrogated  by  agreement.  This  in  itself 
settles  the  role  and  duty  of  the  judge,  who  must  de- 
clare all  such  agreement  null  and  void.  They  are 
thus  organic  laws  in  the  service  of  justice. 
•  Even  in  regard  to  the  civil  service  a  statute  is  not 
an  order.  Its  force  is  derived  from  its  relation  to  a 
means  of  satisfying  the  social  need.  I  admit  freely 
that,  thus  far,  the  character  I  have  ascribed  to  statutes 
has  been  derived  from  purely  theoretical  arguments 
and  that  its  relation  to  the  facts  must  be  still  deter- 
mined. They  are  completely  antithetic  to  the  im- 
perialist conception.  In  that  system  of  law  four  con- 
clusions followed  which  were  accepted  as  sacred 
'dogma :  ( i )  A  law  was  a  decision  derived  only  from 
the  people  or  from  its  representatives;  (2)  A  law  be- 
ing derived  from  the  sovereign  will  of  the  state  is 
subject  to  no  form  of  action  and  gave  rise  to  no  re- 
sponsibility; (3)  A  law,  from  this  character,  was  like 
sovereignty — one  and  indivisible.  A  country,  there- 
fore, could  not  have  statutes  passed  by  districts  or 
groups.  (4)  As  a  command,  a  statute  was  always  a 
unilateral  act.  Statutes  and  agreements  were  mu- 
tually exclusive  ideas.  A  statutory  agreement  was  a 
contradiction  in  terms. 

To-day  none  of  this  is  true.  There  are  statutes 
which  are  not  derived  from  the  people  or  its  repre- 
sentatives. Statutes  may  give  rise  to  action  and  in- 
volve state  responsibility.  Districts  and  groups  pass 


STATUTE  79 

their   statutes.     We   have    agreements    of    statutory 
force.     These  changes  must  be  studied  in  detail. 


Ill 


In  the  first  place  it  is  clear  that  if  a  statute  is  the 
command  of  the  sovereign  power  it  can  be  made  only 
by  the  instrument  in  possession  of  that  power.  For  a 
long  time,  indeed,  the  principle  was  considered  abso- 
lute that  statutes  can  emanate  only  from  a  body  like 
parliament  of  which  the  national  composition  gives 
it  the  diverse  prerogatives  of  national  sovereignty. 
This  is  at  bottom  the  celebrated  principle  of  the  sep- 
aration of  powers.  In  Art.  3  of  the  preamble  of  the 
third  chapter  of  the  Constitution  of  1791,  it  was  said 
that  "the  legislative  power  is  delegated  to  a  national 
assembly  composed  of  temporary  representatives 
freely  elected  by  the  people."  In  title  3  it  states  that 
"the  Constitution  delegates  exclusively  to  the  legisla- 
tive body  the  powers  and  functions  hereinafter  men- 
tioned; to  propose  and  decree  laws;  the  king  may 
only  invite  the  legislative  body  to  take  a  subject  into 
consideration."  8  The  power  of  making  a  law  is  thus 
so  exclusively  the  prerogative  of  the  national  repre- 
sentatives that  they  are  even  given  the  exclusive  right 
of  legislative  initiation. 

Nor  is  this  all.  In  chapter  four  of  Title  3  of  the 
Constitution  of  1791  it  is  stated  that  "the  executive 
power  can  make  no  law  even  of  a  provisory  kind ;  it 

8  Art  1,  ch.  iii,  §  1. 


8o         LAW    IN    THE    MODERN    STATE 

can  only  issue  proclamations  in  accordance  with  stat- 
ute either  to  order  or  to  repeal  their  execution." 
However  it  has  been  interpreted,  the  purpose  of  this 
is  very  clear.  It  entirely  deprives  the  king  of  what 
is  to-day  called  the  power  of  ordinance.  The  word 
proclamation  is  characteristic.  It  implies  that  the 
royal  act  is  not  in  itself  valid,  is  not  a  rule  the  courts 
must  accept,  but  only  an  instruction  addressed  to  the 
civil  service  ordering  or  repealing  the  operation  of  a 
statute.  The  same  principle  was  clearly  formulated 
in  the  Constitution  of  the  year  III :  "A  statute  is  the 
general  will  of  the  majority  of  citizens  or  of  the  rep- 
resentatives." 9  The  Directory  could  issue  no  proc- 
lamations other  than  those  which  either  conformed 
to,  or  applied,  statutes.  Despite  these  restrictions, 
there  are  from  this  time  the  so-called  decisions  of  the 
Directory — a  large  number  of  acts,  certainly  other 
than  proclamations,  which  are  general  rules  inher- 
ently calling  for  execution,  like  statutes,  by  the  courts 
and  the  civil  service. 

Under  the  Consulate  and  the  First  Empire  the 
number  of  general  regulations  issued  by  the  govern- 
ment grew  to  great  proportions.  The  Constitution 
of  the  year  VIII  no  longer  speaks  of  proclamations 
but  of  ordinances.  "The  government  proposes  laws 
and  makes  the  ordinances  requisite  to  their  execu- 
tion." The  change  of  terms  is  characteristic;  they 
are  no  longer  dealing  with  acts  which  enforce  a  law, 
but  with  an  act  containing  a  rule  imposed  by  its  own 
force.  From  the  year  VIII,  whatever  may  be  the 

9  Constitution  of  the  Year,  III,  art.  144,  §§  1-2. 


STATUTE  8l 

\ 

form  of  government — empire,  kingdom,  republic — 
the  number  of  ordinances  issued  by  government  con- 
stantly grows.  Of  course  if  we  accept  the  charter  of 
1814  which  (Art.  14)  gives  the  king  the  right  to  is- 
sue the  ordinances  necessary  to  the  operation  of  stat- 
utes and  the  safety  of  the  state,  all  other  constitutional 
acts  relate  the  ordinance  power  of  the  head  of  the 
state  to  his  executive  power  and  give  it  the  general 
purpose  of  executing  the  laws.  These  restrictions 
are  powerless.  The  facts,  as  always,  are  stronger 
than  constitutions;  the  ordaining  power  constantly 
grows  and  we  have  made  ordinances  which  cannot  be 
merely  related  to  the  execution  of  the  laws.  So, 
alongside  legislation  properly  so  called,  we  have  a 
legislation  which  is  really  executive  in  character  and 
yet  which  has  for  private  citizens,  administrators,  and 
the  courts,  the  same  compulsion  as  formal  statutes. 

We  cannot  here  discuss  the  endless  controversy 
which  has  arisen  over  the  ordaining  power  of  the 
French  president,  particularly  in  relation  to  a  sup- 
posed delegation  of  legislative  power  given  to  him 
by  parliament.  The  undeniable  fact  is  that  the  pres- 
ident issues  to-day  not  only  ordinances  related  to 
earlier  statutes,  but  also  many  independent  ordi- 
nances which  are  in  no  wise  attached  to  a  formal 
statute  and  are  yet  generally  accepted  as  valid.  Of 
this  latter  kind,  for  example,  are  the  general  police 
regulations  issued  by  the  president.10  All  these  reg- 

10  Cf.  the  Decrees  of  March  1,  1899,  and  Sept.  10,  1901,  on 
motor-cars,  and  that  of  Oct.  8,  1901,  on  internal  navigation. 


82         LAW    IN    THE    MODERN    STATE 

illations  cannot  with  the  utmost  subtlety  be  specifi- 
cally distinguished  from  statutes.11 

By  their  very  definition  these  general  regulations 
are  undeniably  imposed  on  private  citizens,  the  ad- 
ministration and  the  courts.  To  violate  them  is  the 
same  thing  as  to  violate  statutes. 

This  does  not  mean  to  say  that  the  president  can 
issue  ordinances  on  every  subject.  There  are  cer- 
tainly matters,  called  legislative,  which  are  within 
the  competence  of  parliament  alone.  That,  how- 
ever, is  a  question  of  capacity  and  does  not  touch  the 
fundamental  point  that  there  is  no  difference  between 
statutes  and  ordinance. 

And,  even  if  there  did  at  one  time  exist  such  a  dif- 
ference, it  is  tending  quite  naturally  to  disappear;  is 
even  perhaps  already  obsolete.  If  it  did  exist  it  can 
only  be  for  the  reason  that  M.  Hauriou  has  given. 
Statutes,  according  to  him,12  are  general  limitations 
on  the  full  activity  of  the  individual.  Ordinances 
are  general  regulations  of  which  the  purpose  is  to 
organise  and  operate  some  public  service.  I  have 
shown  above  that  this  is  supremely  the  purpose  of 
statutes.  The  fundamental  point  is  that  in  the  evolu- 
tion we  are  witnessing  there  are  regulations  of  a  stat- 
utory character  which  do  not  come  from  the  general 
organ  of  sovereign  power.  As  a  consequence  statute 

11  [On  the  president's  power  of  ordinance  cf.  Berthelemy,  Le 
Pouvoir  Reglementaire  du  President,  in  Revue  Politique  et  Parle- 
mentaire,  Jan.-Feb.,  1898.] 

12  Droit  Administratif  (7th  ed.),  p.  50. 


STATUTE  83 

and  sovereignty  have  no  longer  the  necessary  connec- 
tion.13 

It  may  be  said  that  the  distinction  between  statute 
and  ordinance  consists  in  this,  that  an  ordinance  may 
be  attacked  for  illegality  while  the  statute  is  not  sub- 
ject to  legal  defect.  While  this  is  true,  it  is  tending 
to  disappear  and  in  some  countries  is  non-existent. 
Nor  does  it  touch  the  intrinsic  nature  of  the  acts.  To 
attack  legality  does  not  depend  on  the  intrinsic  nature 
of  the  act  considered  but  on  the  character  of  the  in- 
strument or  the  agent  from  whom  it  emanates.  If 
statutes  are  not  subject  to  legal  attack,  it  is  only  be- 
cause French  law  has  not  yet  admitted  that  the  acts  of 
the  legislative  body  can  be  submitted  to  the  courts. 
This  represents,  of  course,  the  survival  of  the  old  idea 
that  the  legislative  body  mirrors  the  sovereignty  of 
the  nation.  But,  as  we  shall  see,  it  is  exactly  at  this 
point  that  we  are  arriving.  The  time  is  not  far  dis- 
tant when  statute  no  less  than  ordinance  will  be  sub- 
ject to  the  control  of  the  courts. 

iy 

In  the  imperialist  theory  the  irresponsibility  of 
statute  was  natural.  As  the  order  formulated  by  the 
sovereign  will  it  could  be  presumed  to  express  a  rule 
of  law.  A  court  cannot  question  statutes  because  its 
business  is  to  apply  the  law  of  which  a  statute  is  the 

13  Moreau,  Le  Reglement  Administratif ;  Duguit,  Traite.  L. 
137,  201  seq.  ii,  451. 


84         LAW    IN    THE    MODERN    STATE 

principal  source.  This  is  more  true  because  sov- 
ereignty is  not  a  matter  of  degrees ;  and  since  a  statute 
is  its  direct  manifestation  no  authority  is  competent 
to  measure  its  validity. 

In  England  this  point  of  view  is  still  good  law. 
Everyone  knows  the  famous  saying  that  the  English 
parliament  can  do  everything  except  make  a  man  a 
woman.  Professor  Dicey  has  shown  in  a  very  strik- 
ing fashion  the  meaning  of  that  principle.  "Parlia- 
ment means,  in  the  mouth  of  a  lawyer  (though  the 
word  has  often  a  different  sense  in  ordinary  conver- 
sation) the  king,  the  House  of  Lords,  and  the  House 
of  Commons ;  these  three  bodies  acting  together  may 
be  aptly  described  as  the  'King  in  Parliament,'  and 
constitute  Parliament. 

"The  principle  of  Parliamentary  sovereignty 
means  neither  more  nor  less  than  this,  namely  that 
Parliament  thus  defined  has,  under  the  English  Con- 
stitution, the  right  to  make  or  unmake  any  law  what- 
ever; and,  further,  that  no  person  or  body  is  recog- 
nised by  the  law  of  England  as  having  a  right  to  over- 
ride or  set  aside  the  legislation  of  parliament." 

In  this  respect  England  does  not  seem  likely,  for 
the  moment  at  least,  to  change  its  system  of  juris- 
prudence. 

In  America  and  France,  however,  there  are  signs 

of  a  great  change  which,  in  the  latter  country,  is  not 

yet  ended.     The  starting  point  of  this  evolution  is 

the  recognition,  at  the  end  of  the  eighteenth  century, 

"Law  of  the  Constitution   (8th  ed.),  pp.  469-76. 


STATUTE  85 

of  a  distinction  between  ordinary  laws  and  constitu- 
tional laws.  To  avoid  confusion,  Professor  Dicey 
calls  such  constitutions  as  make  the  distinction  rigid. 
I  cannot  here  explain  the  circumstances  of  its  origin 
and  development,  particularly  the  mutual  relation  of 
French  and  American  ideas,15 

By  the  end  of  the  eighteenth  century  the  distinction 
had  become  both  in  France  and  America  an  essential 
principle  of  public  law.  We  must  not  exaggerate 
its  importance.  It  in  no  wise  implies  the  recogni- 
tion of  a  constitutional  law-making  body  and  an  or- 
dinary statute-making  body  each  equally  sovereign  in 
its  own  domain.  Still  less  does  it  imply  the  recogni- 
tion of  a  constitution  making  body  superior  in  power 
to  the  ordinary  legislature.  In  the  theory  of  public 
law  founded  on  sovereignty  that  sovereignty  is  uni- 
fied and  does  not  admit  degrees.  Every  statute, 
whether  constitutional  or  not,  is  a  command  of  the 
state  in  its  sovereign  capacity.  But  the  order  is  ex- 
pressed in  different  forms  where  the  law  is  constitu- 
tional in  character.  This  is  important  because  it 
means  that  the  nature  of  constitutional  law  forbids  its 
change  by  ordinary  law;  and  modification  can  come 
only  by  another  constitutional  law  or  some  special 
method. 

This  defines  clearly  the  question  that  must  be  put 
in  France  and  America.  When  the  ordinary  law- 

15  Cf.  Borgeaiid,  Etablissement  et  Revision  des  Constitutions 
(1893)  ;  Gajac,  De  la  Distinction  Entre  des  Lois  Ordinaires  et 
Constitutionnelles  (1911)  ;  Duguit,  Traite,  II,  513f. 


86         LAW    IN    THE    MODERN    STATE 

making  body  passes  a  statute  which  violates  the  con- 
stitution, can  it  be  annulled  by  the  courts?  Is  there 
a  court  competent  to  pronounce  this  annullment?  At 
present  no  such  court  exists.  It  is  of  course  true  that 
in  Art.  21  of  the  Constitution  of  the  year  VIII  and 
the  Art  29  of  that  of  1852,  the  senate,  being  a  con- 
servative body,  was  given  the  right  to  maintain  or  an- 
nul all  acts,  including  those  of  the  legislature,  which 
were  submitted  to  it  as  unconstitutional.  But  neither 
the  senate  of  the  First  Empire  nor  that  of  the  Second 
used  the  power  so  conferred ;  they  were  no  more  than 
an  instrument  which  permitted  the  Emperor  to  alter 
the  constitution  at  his  pleasure. 

Another  question  which  differed  from,  but  which 
was  connected  with,  the  first,  may  be  asked.  Where 
a  man  is  charged  before  a  civil  or  criminal  court  with 
the  violation  of  a  statute  is  the  plea  of  its  unconstitu- 
tionality  a  good  defence?  May  the  court  not  indeed 
pronounce  the  statute  void,  but  refuse  to  apply  it  on 
the  ground  of  its  unconstitutionality.  The  United 
States  has  answered  this  question  in  the  affirmative. 
It  is  to-day  well  settled  that  any  court  can  accept  the 
plea  of  unconstitutionality  and  jefuse  to  apply  an 
unconstitutional  law.  At  the  same  time  not  even  the 
Supreme  Court  can  annul  a  statute. 

Let  us  consider  the"  development  of  the  solution  in 
America.  It  surely  derives  from  the  memory  of  the 
Colonial  period  when  the  courts  could,  and  logically 
had  to,  refuse  to  uphold  statutes  which  went  outside 
the  limits  of  legislative  power  conferred  on  the  col- 


STATUTE  87 

onies  by  the  mother-country.  The  necessity  of  set- 
tling the  conflict  of  laws  in  a  federal  state  is  an  obvi- 
ous source;  and  though  the  constitutional  text  in- 
voked is  in  fact  unrelated  to  the  question,  it  has  been 
used  as  a  basis  for  this  jurisprudence.  And  the  path 
that  the  Supreme  Court  has  trodden  others  have  fol- 
lowed. But  I  cannot  dwell  longer  on  this  matter.16 

The  evolution  in  France  has  been  different.  It  has 
long  been  an  accepted  dogma  that  no  court  could  ac- 
cept a  plea  of  unconstitutionality  and  refuse  to  apply 
a  formal  statute  even  where  they  considered  it  un- 
constitutional. That  an  ordinance  might  give  rise  to 
a  plea  of  illegality  was  undoubted  even  where  the 
president  had  acted  by  express  delegation  of  parlia- 
ment. The  basis  of  this  solution  has  been  found  in 
the  Penal  Code  (Art.  471,  No.  15),  which  as  a  fact 
deals  only  with  ordinances  to  which  a  penal  sanction 
attaches.  But  it  now  applies  to  ordinances  of  every 
kind. 

There  we  have  stopped.  For  a  long  time  legal 
theory  and  legal  decisions  have  unanimously  agreed 
that  no  court  can  pass  upon  the  constitutionality  of  a 
statute  or  refuse  to  apply  it  on  that  ground.  The 
thought  underlying  this  attitude  is  clear  enough.  A 
statute,  in  its  view,  is  the  expression  of  a  national  sov- 
ereignty upon  which  no  court  is  competent  to  pass 

16  [See  Beard,  The  Supreme  Court  and  the  Constitution,  for  a 
full  discussion  cf.  this  .question.]  Cf.  Nerincx,  L'Organisation  Ju- 
diciaire  aux  Etats-Unis  (1909),  p.  36  seq. ;  Laraude,  Bulletin  de  la 
Societe  de  Legislation  Comparee  (1902),  p.  179  seq.;  Boudin, 
Pol.  Sci.  Quarterly  (1911),  p,  338. 


88         LAW    IN    THE    MODERN    STATE 

judgment.  It  is  the  logical  consequence  of  a  theory 
which,  making  the  courts  the  servants  of  the  state, 
prevent  the  opposition  of  their  will  to  that  of  the 
state  in  its  legislative  capacity. 

The  usual  explanation  is  however  different  from 
this.  It  is  generally  deduced  from  the  principle  of 
the  separation  of  powers.  The  judiciary  must  not 
encroach  upon  the  legislature  or  the  executive.  Texts 
are  cited  insisting  on  this  separation.17  These  texts 
in  reality  have  no  connection  with  the  question.  The 
principle  of  the  separation  of  powers  leads  to  an  en- 
tirely different  solution.  A  court  which  refuses  to 
apply  a  statute  on  the  ground  of  unconstitutionality 
does  not  interfere  with  the  exercise  of  legislative 
powers.  It  does  not  suspend  its  application.  The 
law  remains  untouched  except  in  relation  to  the  issue 
in  question.  It  is  simply  because  the  judicial  power 
is  distinct  from  and  independently  equal  to  the  two 
others  that  it  cannot  be  forced  to  apply  the  statutes 
it  deems  unconstitutional.  This  has  been  understood 
in  America,  and  the  principle  of  the  separation  of 
powers  has  logically  given  American  courts  the  right 
of  judicial  review.  For,  after  all,  to  take  away  that 
power  is  to  make  the  courts  inferior  to  the  legislature 
and,  by  that  dependence,  to  violate  the  principle  of 
separation.  So  that  the  real  reason  why  French 
courts  do  not  exercise  the  power  of  judicial  review  is 
simply  that  statute  as  the  expression  of  the  state's 

17  Cf.  Constit.  of  1791,  art.  iii,  chap,  v.,  tit.  in;  Law  of  Aug. 
16,  1790,  art.  10,  tit.  iL 


STATUTE  89 

sovereign  will  must  be  imposed  without  restriction  or 
reservation. 


If,  as  I  suggest,  the  conception  of  sovereignty  is  in 
process  of  disintegration,  we  ought  to  find  an  increas- 
ing tendency  to  confer  on  the  courts  the  power  of 
judicial  review.  It  is  exactly  this  that  has  happened. 
Of  course  the  judges  themselves  have  always  refused 
in  France  to  discuss  the  constitutionality  of  statutes, 
and  to-day  they  would  not  decide  differently.  The 
precedent  of  1833,  when  such  a  plea  was  rejected  by 
the  Court  of  Cassation,  still  holds  good.  A  journal- 
ist had  appealed  against  the  law  of  Oct.  8,  1830,  on 
the  ground  of  its  unconstitutionality.  This  plea  was 
held  bad  on  the  ground  that  "since  the  statute  was 
discussed  and  promulgated  in  the  form  prescribed  by 
the  Charter  the  courts  cannot  entertain  an  attack  on 
its  legality."  18 

On  the  other  hand,  French  judicial  theory  and  the 
jurisprudence  both  of  the  Council  of  State  and  cer- 
tain foreign  systems  of  French  inspiration  tend  more 
and  more  clearly  to  accept  the  necessity  of  judicial 
review.  In  1894  in  an  article  in  the  Monde  d  Eco- 
nomique,  Professor  Beauregard,  now  a  member  of  the 
Chamber,  urged  that  the  courts  were  in  duty  bound 
to  hold  of  no  effect  a  statute  establishing  the  principle 
of  Cadenas  on  the  ground  that  it  violated  the  consti- 
tutional principle  that  taxation  could  derive  only; 

18Sirey   (1833),  I,  351. 


90         LAW    IN    THE    MODERN    STATE 

from  the  decision  of  Parliament.  In  1895  M.  Jeze 
did  not  hesitate  to  urge  19  that  if  a  statute  violates  the 
constitution  the  courts  cannot  apply  it,  because  in  the 
presence  of  contradictory  authorities  they  must  en- 
force the  superiority  of  the  constitution.  That  atti- 
tude is  gaining  increasing  acceptance  among  compe- 
tent authorities.20 

This  thesis  has  also  been  defended  by  M.  Hau- 
riou.21  In  its  decision  of  Aug.  7,  1909,  the  Council 
of  State  refused  to  annul  the  decree  which  dismissed 
a  large  number  of  postal  employees  for  going  on 
strike.  The  decree  obviously  violated  Art.  65  of 
the  Financial  Act  of  April  22,  1905.  By  its  terms  no 
civil  servant  could  be  dismissed  without  the  ground 
of  his  dismissal — at  least,  the  fact  of  his  approach- 
ing dismissal — being  first  communicated  to  him. 
M.  Hauriou  very  justly  observes  that  those  who  sup- 
port the  decision  cannot  justify  the  explanation  given 
by  the  Council  of  State  itself.  That  solution  can  be 
explained  only  on  the  theory  that  if  Art.  65  of  the 
Financial  Act  of  1905  was  applicable  even  to  a  case 
when  a  strike  involved  the  dismissal  of  certain  civil 
servants,  it  would  be  unconstitutional  on  the  ground 
that  it  was  incompatible  with  the  essential  conditions 

19  Revue  Generale  d'Administration  (1895),  II,  411. 

20  Such  as  Saleilles  and  Thaller,  Bulletin  de  la  Societe  de  Legis- 
lation Comparee   (1902),  p.  240  seq.     [Cf.,  however,  Mr.  As- 
quith's  repudiation  of  the  idea  of  judicial  review  during  the  debates 
on  the  third  Home  Rule  Bill,  Hansard,  Fifth  Series,  Vol.  42, 
p.  2229.] 

21Sirey  (1909),  III,  14. 


STATUTE  91 

of  state  existence.  For  the  regular  operation  of  ad- 
ministrative business  is  the  very  raison  d'etre  of  the 
state.  When  the  Council  of  State  therefore  sup- 
ported the  decree  of  dismissal  it  simply  refused  to 
apply  an  unconstitutional  statute.  M.  Hauriou  is 
patently  right;  and  his  theory  involves  the  conception 
of  the  state  I  have  suggested  as  a  group  of  public 
services  guaranteed  and  controlled  by  government. 

This  solution,  moreover,  has  won  the  adherence  of 
Professor  Berthelemy.22  At  the  present  day  it  is  ex- 
tending itself  all  over  Europe.  In  Germany  Profes- 
sor Laband  23  tells  us  that  after  much  discussion  the 
immense  majority  of  German  jurists  are  in  favor  of 
judicial  review.  In  Norway  the  power  has  been 
logically  deduced  from  the  recognised  character  of 
the  judicial  function  without  the  need  of  a  formal 
text.  It  was  recognised  in  1890  by  the  Supreme 
Court  of  Norway  and  in  1893  by  the  District  Court 
of  Christiania.  In  1904  the  first  Chamber  of  the 
Areopagus  asserted  this  doctrine  in  the  clearest 
terms.24  A  recent  decision  of  the  Court  of  Ilfor  con- 
firmed by  the  Rumanian  Court  of  Cassation  has 
adopted  this  attitude  in  very  remarkable  terms.  They 
owe  their  clarity  to  a  most  remarkable  opinion  given 
by  MM.  Berthelemy  and  Jeze  25  in  a  case  between  the 
city  of  Bucharest  and  its  tramway  company.  The 

22Sirey  (1912),  IV,  12. 

23  Droit  Public,  II,  322. 

24  Revue  de  Droit  Public  (1905),  p.  481. 

25  Revue  de  Droit  Public  (1912),  p.  139,     Sirey,  IV,  9  (1912). 


92         LAW    IN    THE    MODERN    STATE 

company  asked  the  court  to  prohibit  the  application 
of  the  law  of  Dec.  18,  1911,  on  the  ground  that  since 
it  violated  Arts.  14  and  30  of  the  Rumanian  constitu- 
tion by  attacking  the  right  of  property,  it  was  uncon- 
stitutional. The  court  accepted  the  plea  in  a  very 
striking  judgment.  A  month  later  the  judgment  was 
confirmed  by  the  Supreme  Court  in  the  following 
terms:  "If  in  a  case  plea  is  made  that  a  statute  is  un- 
constitutional, the  judge  cannot  refuse  to  try  the  issue. 
Exactly  as  where  two  ordinary  statutes  conflict  it  is 
his  right  and  duty  to  decide  which  of  them  must  be 
applied  and  it  is  as  much  his  duty  even  where  one  of 
these  two  laws  is  the  constitution.  Within  these  lim- 
its, the  right  of  judicial  review  is  incontestable.  The 
power  flows  primarily  and  naturally  and  logically 
from  the  nature  and  character  of  the  judicial  func- 
tion of  which  it  is  the  business  to  enforce  the  law;  and 
the  law  of  the  constitution  equally.  There  exists  no 
clause  in  the  constitution  which  deprives  the  judi- 
ciary of  this  power."  26 

It  is  clear  from  these  facts  that  if  European  juris- 
prudence does  not  yet  admit  that  a  court  can  annul  a 
statute  for  violating  a  superior  rule  of  law,  it  very 
clearly  tends  to  admit  the  plea  of  unconstitutionality 
to  any  interested  party.  French  jurisprudence  will 
certainly  be  led  by  sheer  force  of  facts  to  this  conclu- 
sion. Probably  the  evolution  will  be  inaugurated  by 
the  Council  of  State.  I  have  already  suggested  the 

26  Revue  de  Droit  Public  (1912),  p.  365  seq. 


STATUTE  93 

avenue  of  approach  in  discussing  M.  Hauriou's  very 
plausible  interpretation  of  the  decision  which  upheld 
the  decree  of  1909.  For  a  long  time  past  the  Coun- 
cil of  State  has  accepted  the  plea  of  illegality  in  re- 
gard to  administrative  regulations  even  though  it 
considers  them  as  issued  in  virtue  of  legislative  dele- 
gation. Since  1907  the  Council  of  State  had  admit- 
ted the  plea  of  excess  of  power  against  these  same 
regulations  even  while  it  maintained  the  theory  of 
delegation.27  Now  if  there  is  delegation,  logically 
administrative  ordinance  is  in  reality  the  work  of 
parliament;  for  unless  delegation  means  nothing,  it 
means  the  transmission  from  one  institution  to  an- 
other of  its  own  power. 

The  path  from  the  consideration  of  administrative 
ordinance  to  formal  statute  is  easy  and  short.  It  is 
therefore  likely  that  in  the  near  future  this  change 
will  become  established  fact.  It  is  in  this  connection 
interesting  that  the  Chamber  of  Deputies  should  have 
been  presented  with  certain  measures  directed  to  this 
end.  On  Jan.  28,  1903,  MM.  Jules  Roche,  Charles 
Benoist,  and  Audiffred  proposed  a  bill  which 
added  the  following  article  to  the  constitutional  law 
of  Feb.  25,  1875:  "A  Supreme  Court  should  be  es- 
tablished charged  with  passing  upon  the  claims  of 
citizens  for  the  violation  of  their  constitutional  rights 
of  the  legislature  in  executive  power."  On  the  same 
day  M.  Charles  Benoist  presented  a  bill  for  the  es* 

27Recueil  (1907),  p.  913;  (1908),  p.  1094;  (1911),  p.  197. 


94         LAW    IN    THE    MODERN    STATE 

tablishment  of  a  Supreme  Court  which  should  take 
account  of  attacks  on  the  rights  and  liberties  of  chi- 
ns." 
28  Journal  Official,  Proc.  Parl.  Chambre  (1903),  pp.  95,  99. 


zens.28 


t~ 


CHAPTER   iy 
SPECIAL  STATUTES 

OTHER  facts  tend  to  make  clear  the  disappearance 
from  statute  of  the  ideas  of  a  sovereign  command. 
And  it  is  exactly  here  that  there  is  to  be  discerned 
the  profoundest  change  of  modern  times.  The  the- 
ory of  a  sovereign  state,  indeed,  its  emanation  from  a 
nationality,  situated  on  definite  territory,  and  organ- 
ised into  a  government,  was  rigorously  logical 
enough.  It  swept  all  wills  save  its  own  from  the 
field  of  control.  The  texts  bear  witness  to  the  im- 
mense influence  it  exerted.1 

The  consequence  of  this  theory  is  clear.  If  law  is 
the  expression  of  the  unified  and  sovereign  will,  it  is 
evident  that  on  a  given  territory  there  can  only  be  one 
law  and  that  the  members  of  a  nation  recognising 
only  that  one  law  can  admit  the  validity  of  no  other 
form  of  statute.  But  we  shall  see  that  in  the  modern 
state  alongside  national  laws  there  are  local  laws  and 
group  laws  which  the  citizens  accept  and  the  courts 
enforce. 

1  Cf.  the  Constitution  of  1791,  title  iii,  art.  1 ;  Constit.  of  1848, 
art.  I. 

95 


96         LAW    IN    THE    MODERN    STATE 

i 

Obviously  the  sovereign  cannot  admit  a  federalist 
organisation.  Every  one  knows  with  what  fierce  in- 
dignation the  Convention  attacked  every  governmen- 
tal attempt  into  which  federalism  might  rightly  or 
wrongly  be  read.  By  federalism  the  convention  un- 
derstood what  we  to-day  call  decentralisation — that 
is  to  say,  any  system  in  which  a  territorial  area  is  self- 
governing.  That  this  was  contrary  to  the  principle 
of  unified  sovereignty  had  been  clearly  announced  by 
those  who  wrote  the  Constitution  of  1791.  It  is  true 
that  the  national  assembly  of  1789  had  established  a 
system  of  local  decentralisation  in  the  twofold  sense 
that  all  local  civil  servants  were  elected  and  that  the 
control  of  the  central  government  was  greatly  nar- 
rowed. But  the  constitution  laid  it  down  that  "the 
Administration  is  not  a  representative  agency.  Its 
members  are  elected  from  time  to  time  by  the  people 
to  exercise  administrative  functions  under  the  super- 
vision of  the  authority  of  the  Crown."  Thus  al- 
though the  local  organs  were  elected,  the  representa- 
tives of  the  local  group  and  its  will,  so  far  as  it  had  a 
will,  had  no  representatives  who  could  pass  a  local 
law.  Country,  nation,  sovereignty,  law — all  these 
were  one  and  indivisible. 

To-day  all  this  is  changed.  Every  impartial  ob- 
server must  be  impressed  with  the  variety  of  law  and 
especially  with  its  localisation.  It  is  very  striking  in 

2  Constit.  of  1791,  tit.  iii,  chap,  iv,  sec.  ii,  art.  2  and  3. 


SPECIAL    STATUTES  97 

federal  countries  when  on  the  same  territory  federal 
law  and  state  law  are  both  applied.3  If  we  do  not 
insist  on  this  evidence  it  is  not  because  the  growing 
conception  of  federal  government  is  not  important, 
but  because  the  antinomy  between  imperialist  theory 
and  federalist  fact  is  so  clear  as  not  to  need  discus- 
sion. 

Moreover,  it  is  not  only  in  federal  countries  but 
even  in  unitary  states  like  France  that  this  localisa- 
tion of  law  is  apparent.  Law,  above  all,  is  a  rule 
which  derives  from  the  central  government  and  is  ap- 
plicable in  theory  to  every  individual  in  the  state; 
but,  by  its  side,  local  laws  begin  to  make  their 
appearance. 

In  France,  since  1871,  the  question  of  decentraliza- 
tion has  been  frequently  discussed.4  The  law  of 
Aug.  10,  1871,  on  general  councils  was  a  step  in  this 
direction.  The  authors  of  the  law  of  April  5,  1884, 
tried,  with  little  justification,  to  create  a  decentral- 
ised system.  Parliament  has  for  several  years  dis- 
cussed different  proposals  which  have  aimed  at  sub- 
stituting a  district  for  a  department  in  order  to  create 
a  real  autonomy  and  to  enlarge  communal  powers. 
Several  men  of  ability  have  hoped  that  a  system  of 

3  [On  the  other  hand,  the  observer  should  note  the  growing 
tendency  towards  federal  control.     Cf.  Franklin  Pierce,  Federal 
Usurpation,  1908,  and  Laski,  Problem  of  Sovereignty,  Appendix 
B.] 

4  [The  literature  is  enormous.    Cf.  especially  P.  Deschanel,  La 
Decentralisation,  1895;  M.  Hauriou,  La  Decentralisation,  1893, 
and  Charles  Maurras  et  J.  Paul-Boncour,  Un  Nouveau  Debat 
sur  la  Decentralisation,  1908.] 


98         LAW    IN    THE    MODERN    STATE 

electoral  reform,  which  should  include  the  scrutin  de 
liste  and  minority  representation,  would  be  the  pre- 
lude of  a  great  administrative  reform  in  a  decentral- 
izing direction.  But  since  neither  of  these  has  hap- 
pened we  must  discuss  only  what  has  actually  oc- 
curred. 

To-day,  both  in  fact  and  in  law,  the  communes,  or 
at  least  the  great  towns,  have  undoubtedly  a  power  of 
legislation  distinct  from  that  of  the  central  govern- 
ment. The  limitation  derives  from  the  fact  that  even 
if,  in  law,  a  municipal  system  is  the  same  both  for 
large  and  small  communes,  the  force  of  circumstance 
has  made  the  autonomy  of  the  great  towns  alone  a 
reality. 

It  is  of  course  true  that  as  the  nation  created  this 
system  of  municipal  autonomy  so  the  nation  can  take 
it  away.  But  custom  has  given  such  popularity  to 
this  burghal  independence  as  to  render  its  complete 
withdrawal  impossible. 

However  that  may  be,  in  a  limited  field  and  no- 
tably in  regard  to  police  and  municipal  services, 
mayors  can  make,  under  the  name  of  ordinances,  true 
communal  statutes.  These  ordinances  constitute  in  a 
real  sense  an  objective  communal  law  applicable  to 
every  one  in  the  area  to  which  they  apply.  If  they 
do  not  modify,  they  may  at  least  augment,  the  duties 
derived  from  the  national  system  of  police.  They 
are  real  statutes  in  the  sense  that  they  are  general  reg- 
ulations to  which  obedience  is  secured  by  a  penal 
sanction.  To  act  in  conformity  with  them  may  pro- 


SPECIAL    STATUTES  99 

duce  a  situation  entailing  legal  rights ;  to  violate  them 
involves  due  legal  responsibility. 

By  statute,  by  custom,  and  by  the  attitude  of  the 
courts,  these  communal  statutes  have  come  to  be  re- 
garded as  made  in  the  name  of  the  local  group.  In 
every  French  commune  to-day  the  mayor  is  elected 
by  the  municipal  council  which  is  in  turn  elected  by 
universal  suffrage  within  the  commune. 

The  law  of  1884  did  not  give  to  the  municipal 
council  any  control  over  municipal  regulations.  But 
in  fact  custom  has  given  it  that  power.  There  is  no 
town  in  France  where  its  wide  exercise  is  not  appar- 
ent ;  and  some  recent  legislation,  such  as  the  statute  of 
Feb.  15,  1902,  associates  the  Municipal  Council  with 
the  drawing  up  of  police  regulations.  It  is  every- 
where recognised  to-day  that  the  prefect,  though 
he  is  the  agent  of  the  central  power,  cannot  change 
the  mayoral  regulations,  but  only  annul  them  for  ille- 
gality, and  cannot  take  the  mayor's  place  when  the 
latter  has  taken  all  necessary  police  measures.  If 
the  prefect  goes  beyond  his  powers  on  this  question, 
the  mayor  can  go  to  the  courts  and  have  the  prefec- 
torial  decision  annulled.  Clearly,  therefore,  the 
mayor  is  for  his  commune  not  merely  a  subordinate 
of  the  prefect  but  a  real  legislator  who  acts  as  a  rep- 
resentative of  his  locality  in  its  decentralised  form. 

Several  decisions  of  the  Council  of  State  have 
thrown  this  into  striking  relief.  Most  notable  is  the 
decision  of  June  7,  1902,  which  accepted  the  plea  of 
the  mayor  of  Neris  against  the  decision  of  the  prefect 


100       LAW    IN    THE    MODERN    STATE 

of  Allier.5  The  latter  had  issued  regulations  in  re- 
gard to  the  casino  of  this  holiday  resort  which  were 
in  contradiction  to  those  issued  by  the  mayor  for  the 
territory  under  his  control.  In  1910  the  Council  of 
State  decided  in  the  mayor's  favor,  and  it  has  ac- 
cepted the  plea  of  a  mayor  against  a  prefectoral  de- 
cision, annulling  a  decision  in  which  a  mayor  has  re- 
pealed a  regulation  of  one  of  his  predecessors  prohib- 
iting processions.6 

That  municipal  regulations  are  clearly  communal 
statutes  is  clear  also  from  the  point  of  view  of  liabil- 
ity. The  Council  of  State  tends  more  and  more  to 
recognise  communal  liability  for  municipal  regula- 
tions. The  cases  on  this  question  clearly  relate  them- 
selves to  that  evolving  jurisprudence  which  recog- 
nises public  responsibility  for  public  acts.  Its  evi- 
dent implication  is  that  a  municipal  regulation  is 
really  a  communal  statute  because  it  is  the  commune 
which  bears  the  responsibility  so  created.  This  re- 
sponsibility was  recently  recognised  when  a  mayor 
illegally  regulated  the  use  of  the  church  bells  and, 
notably,  ordered  them  to  be  used  for  civil  funerals. 
The  Council  of  State  annulled  the  decision  and  rec- 
ognised in  principle  the  liability  of  the  commune  to 
the  vicar  for  the  moral  prejudice  created  by  the  reg- 
ulation.7 

5Sirey  (1902),  iii,  p.  81. 

6  Conseil  d'Etat,  Dec.  16,  1910;  Recueil,  p.  957. 

7  Le  Temps,  June  17,  1912. 


SPECIAL    STATUTES,  IOI 

II 

Not  only  are  there  local  statutes  but  there  are  also 
statutes  concerned  with  public  administration  which, 
in  so  far  as  that  administration  is  decentralised,  have 
a  similar  limitation.  This  administrative  decentral- 
isation is  one  of  the  most  interesting  phenomena  of 
our  time. 

I  have  already  pointed  out  the  increasing  develop- 
ment, especially  in  France,  of  an  administrative  de- 
centralisation which  associates  the  civil  servants  with 
the  control  of  the  service  concerned.  This  system  is 
concerned  only  with  technical  services  and  not  with 
such  as  those  of  war  and  justice  which  must  always 
remain  under  the  control  of  the  central  govern- 
ment. 

The  elements  of  such  a  system  consist,  outside  the 
participation  of  its  agents  and  the  direction  of  the 
service,  in  its  corporate  organisation  and  its  patrimo- 
nialisation.  That  is  to  say,  it  is  given  an  independent 
budget  of  which  the  management  under  government 
supervision  is  confided  to  the  officials  themselves. 
This  governmental  supervision  is  found,  above  all,  in 
the  system  of  obligatory  expenditure ;  that  is  to  say, 
in  the  power  of  government  to  compel  certain  expen- 
diture deemed  by  it  necessary  to  the  proper  function- 
ing of  the  service  in  such  cases  as  its  managers  should 
disagree  with  the  Budget.  The  necessary  counter- 
part of  decentralisation  is  the  personal  responsibility, 


102       L:A3y;;£»[i;:THE.iM,ODERN    STATE 

under  personal  recognition  and  vigorous  sanction,  of 
the  officials  to  the  public. 

We  have  taken  only  the  first  steps  towards  this  or- 
ganisation. But  there  are  signs  that  this  evolution 
will  proceed  more  rapidly,  and  that  it  is  becoming 
the  vital  condition  of  the  extension  of  state  powers  if 
the  excessive  absorption  of  individual  initiative  is  to 
be  avoided. 

In  France  the  public  departments  are  an  obvious 
example  of  functional  decentralisation.  These  de- 
partments are  public  services  with  their  own  budget 
and  their  own  administration.  Their  officials  form 
a  managing  council  which,  while  it  is  to-day  of  a  nar- 
row kind,  will  certainly  extend.  The  ideal  type  is 
that  of  our  universities  created  by  the  law  of  July  10, 
1896,  and  organised  by  the  great  decrees  of  the  next 
year.  They  have  each  an  autonomous  budget;  under 
state  supervision,  they  are  managed  by  a  council  en- 
tirely composed — with  the  exception  of  the  Rector, 
who  is  its  president — of  professors  elected  by  their 
colleagues  from  the  university  concerned.  The 
teachers  in  higher  education  have  a  strongly  pro- 
tected status  and  are  subject  to  the  discipline  of  a 
university  council  which  is  nothing  so  much  as  the 
council  of  an  independent  corporation;  while  appeal 
lies  in  the  superior  council  of  instruction  made  up 
for  the  most  part  of  elected  members,. 

Parallel  with  the  tendency  towards  administrative 
autonomy  in  each  service,  there  is  a  tendency  also  to 
give  the  civil  servants  a  special  status.  This  status 


SPECIAL    STATUTES  103 

connects  two  intimately  related  ends.  On  the  one 
hand  it  aims  at  protecting  the  official  from  arbitrary 
attack,  at  securing  him  his  position,  his  regular  ad- 
vancement, and  the  means  of  defence  against  political 
influences.  On  the  other  hand  it  aims  at  securing 
the  civil  servant's  affection  for  his  employment  with 
a  view  to  its  improvement.  It  is  this  second  aim  that 
is  the  most  important.  Law  tends  to  protect  the  civil 
servant  not  in  his  interest  but  in  that  of  the  service; 
or  rather  it  only  protects  him  in  the  interest  of  the 
service.  This  status  will  vary  with  the  different  de- 
partments. It  is  true  indeed  that  several  years  ago 
the  Chamber  of  Deputies  considered  the  proposal  for 
the  establishment  of  a  law  regulating  the  position  of 
all  civil  servants  with  some  few  exceptions ;  and  that 
at  the  end  of  1911  M.  Maginot  presented  a  remark- 
able report  on  this  question.  But  the  Chamber  has 
not  yet  discussed  the  project  and  it  is  doubtful  if  it 
ever  will  do  so.  The  variety  of  the  departments  is 
already  so  great  that  it  is  impossible  to  secure  any 
general  status  by  law.8  The  solution  of  the  problem 
is  a  separate  departmental  status  established  by  agree- 
ment between  the  Minister  and  the  permanent  offi- 
cials. 

The  close  relation  between  functional  decentrali- 
sation and  the  status  of  officials  is  clearly  set  forth  in 
the  financial  law  of  1911  (Art.  41  following),  which 
gave  some  degree  of  autonomy  to  the  state  railways. 

8  [It  has,  however,  been  proposed  by  a  distinguished  civil  serv- 
ant. Cf.  G.  Demartial,  Le  Statut  de  Fonctionnaires,  1909.] 


104       LAW    IN    THE    MODERN    STATE 

Art.  56  created  a  council  called  the  Council  of  the 
System  to  which  four  officials  are  appointed,  chosen 
by  the  Minister  from  the  delegates  elected  to  the  di- 
verse committees  and  commissions  of  the  system. 
This  council  must  give  its  advice  on  the  rules  relat- 
ing to  official  status  (Art.  58,  No.  2).  This  status 
which,  according  to  Art.  68,  was  to  be  applied  with- 
in a  year,  was  established  as  the  result  of  an  agree- 
ment between  the  minister  and  these  respective  dele- 
gates. There  have  been  some  protests  from  the  offi- 
cials concerned.  But  with  the  coming  of  calm  the 
agreement  has  been  applied.  Inherently  interesting 
as  it  is,  it  is  above  all  important  as  the  herald  of  what 
will  probably  be  the  future  organisation  of  such  pub- 
lic services  as  are  technical  in  character;  unless  revo- 
lutionary effort  does  not  hinder  and  falsify  this  nor- 
mal evolution  to  the  detriment  of  those  it  pretends 
to  serve. 

The  establishment  of  a  statute  for  each  separate  de- 
centralised service  is  the  establishment  of  a  statute 
distinct  from  national  legislation.  An  autonomous 
department  with  its  own  budget  is  a  self-sufficient 
legal  organism  and  must  therefore  have  its  own  law. 
The  whole  object  of  that  law  is  simply  to  regulate  its 
organisation  and  functions;  and  the  law  established 
is  in  the  full  sense  a  statute;  that  is  to  say,  it  is  a 
general  regulation  based  upon  legal  sanction  the  vio- 
lation of  which  brings  the  offender  before  the  courts. 

An  instance  of  a  statute  distinct  from  national  leg- 
islation and  applied  to  a  decentralised  service  ap- 


SPECIAL    STATUTES  IO$ 

pears  very  clearly  in  the  case  of  the  charitable  admin- 
istration of  a  great  town.  This  settles  its  own  organ- 
isation and  its  own  bye-laws.  Under  the  name  of  or- 
dinance it  issues  a  mass  of  rules  which  in  reality  are 
laws  dealing  with  the  management  of  its  business. 
Their  violation  again,  as  the  Council  of  State  has 
often  decided,  involves  annulment.  The  statute  gov- 
erning an  autonomous  service  is  thus  distinct  from 
national  law  both  by  its  purpose  and  its  origin;  and 
the  same  may  be  said  of  the  regulations  issued  by  each 
university  for  its  own  administration.  Each  univer- 
sity council  has  in  this  regard  a  full  legislative  com- 
petence. 


Ill 


The  law  peculiar  to  each  decentralised  service  is 
seen  in  still  more  striking  relief  in  its  relation  to  the 
special  status  which  is  being  established  for  the  civil 
servants  of  the  different  departments.  The  word 
status,  which  has  become  a  technical  legal  term,  gen- 
erally describes  the  legal  situation  of  a  definite  per- 
son in  a  given  group  by  reason  of  his  membership  of 
it.  Thus,  to  speak  of  the  status  of  the  civil  servants  in 
a  given  department  is  to  recognise  that  because  they 
belong  to  that  department  they  have  a  special  legal 
position.  If,  of  course,  all  civil  servants  had  the 
same  status,  it  would  probably  follow  that  its  origin 
was  a  piece  of  national  legislation.  It  would  be  dif- 
ferent from  the  status  of  the  ordinary  citizen ;  but  it 


106       LAW    IN    THE    MODERN    STATE 

would  be  a  general  difference  arranged  in  the  interest 
of  the  national  organisation  by  means  of  its  parlia- 
mentary system.  The  status  of  civil  servants  in  each 
department  is,  however,  different.  Each  department 
participates  in  deciding,  and  sometimes  completely 
determines,  the  kind  of  status  it  will  have.  Some- 
times that  status  applies,  and  can  only  apply,  to  a  sin- 
gle department.  We  have  then  a  statute  distinct  from 
a  national  statute  dealing  with  a  definite  group  and 
applying  only  to  those  officials  whose  membership  of 
the  group  gives  to  their  situation  its  special  needs. 

I  have  already  mentioned  how  in  September,  1912, 
the  railway  service  as  a  result  of  an  agreement  be- 
tween the  management  and  the  employees  was  given 
a  special  organisation.  For  that  purpose  a  code  of 
rules  was  drawn  up  which  was  essentially  a  statute  in 
that  it  was  a  general  regulation  to  which  a  legal  sanc- 
tion was  attached.  It  was  not  national  legislation, 
because  it  applied  only  to  a  group  distinct  from  the 
nation,  and  derived  both  its  origin  and  its  purpose 
from  the  special  position  of  that  group. 

This  statement  perhaps  contains  the  answer  to  one 
of  the  most  difficult  questions  of  public  law.  French 
and  German  publicists  have  devoted  much  attention 
in  the  last  few  years  to  the  question  of  the  foundation 
of  the  character  of  disciplinary  law.  The  practical 
question  is,  how  the  same  act  can  be  the  object  of  dis- 
ciplinary repression  without  being  the  object  of  penal 
repression.  How,  moreover,  can  the  same  act  be 


SPECIAL    STATUTES  107 

the  object  of  penal  suppression  and  of  disciplinary 
repression  at  one  and  the  same  time? 

In  all  that  has  recently  been  written  on  this  ques- 
tion there  is  a  clear  tendency  to  see  in  disciplinary 
law  the  law  of  a  group  distinct  from  the  state.  Pro- 
fessor Jellinek,  for  example,  who  has  so  strikingly 
expounded  the  theory  of  the  state-person  as  the  pos- 
sessor of  subjective  rights,9  does  not  hesitate  to  say 
that  disciplinary  repression  is  entirely  different  from 
penal  repression  in  that  the  former  is  not  derived 
from  the  state's  power  to  command.  For  him,  the 
power  to  discipline  belongs  to  groups  like  churches, 
communes,  societies,  the  family,  the  public  depart- 
ments and  sometimes  even  the  private  citizen,  who 
are  entirely  distinct  from  the  state. 

My  colleague,  M.  Bonnard,  seems  to  me  to  have 
given  the  best  explanation  of  the  facts.10  In  his  view 
the  right  to  discipline  is  the  penal  law  of  a  corpora- 
tion distinct  from  the  state  so  that  the  two  laws  have 
an  origin  and  a  field  of  activity  that  are  entirely  dis- 
tinct. He  insists  that  in.  modern  law  public  activi- 
ties tend  to  assume  a  corporate  form.  The  right  to 
discipline  in  a  public  activity  thus  becomes  the  penal 
law  of  a  corporately  organised  civil  service.  This 
fits  in  very  well  with  a  marked  tendency  of  recent 
statutes  and  ordinances  to  give  the  right  of  discipline 
to  the  corporate  councils  of  the  different  departments. 

9  System  der  Offentlichen  Subjektivend  Rechte  (1905),  p.  214f. 

10  De  La  Repression  Disciplinaire  (1902), 


108       LAW    IN    THE    MODERN     STATE 

I  think  it  is  clear  that  M.  Bonnard  too  greatly  nar- 
rows the  field  of  disciplinary  law  when  he  calls  it  the 
penal  law  of  corporations.  It  is  true,  perhaps,  that 
he  does  not  use  the  word  corporation  in  its  historic 
and  legal  sense.  But  he  certainly  goes  too  far  when 
he  urges,  without  sufficient  limitation,  that  public  ac- 
tivities tend  to  take  corporate  form.  It  is  neverthe- 
less beyond  question  that  disciplinary  law  is  neither 
national,  nor  from  the  state,  and  is,  in  fact,  the  penal 
law  of  distinct  and  more  or  less  autonomous  groups. 
Such  are  associations  of  a  regional  or  of  a  social  char- 
acter, like  professional  trade  unions,  or  voluntary  so- 
cieties, which,  without  being  technically  corpora- 
tions, yet  act  as  units  leading  towards  the  corporate 
type.  It  is  certainly  true  of  public  services  which 
become  the  more  autonomous  as  they  become  more 
decentralised. 

The  disciplinary  law  of  the  officials  of  a  given  de- 
partment is,  then,  the  penal  law  of  the  group.  That 
group  has  an  organic  law.  But  it  has  also  a  penal 
law  of  which  the  basis  is  the  same  as  that  of  all  re- 
pressive law;  namely,  the  need  to  punish  every  act 
which  may  inherently  compromise  the  life  of  the 
group  which  is  here  the  operation  of  the  service.  So 
public  officials  are  submitted  to  penal  laws  of  an  en- 
tirely distinct  character.  The  national  penal  law  has 
as  its  end  the  security  of  the  people  as  a  whole.  The 
penal  law  of  their  particular  service  assures  its  oper- 
ation in  conformity  with  its  fundamental  purposes. 
Their  domain  is  obviously  distinct;  but  the  official 


SPECIAL    STATUTES  109 

must  nevertheless  obey  both.  An  act  may  be  pun- 
ished by  one  and  not  by  the  other ;  it  may  on  the  other 
hand  be  punished  by  both.  Penal  repression  does 
not  exclude  disciplinary  repression  and  vice  versa. 

Obviously  this  renders  impossible  the  imperialist 
theory  of  a  unified  law  for  all  men  in  a  given  state. 

This  discipline  is  thus  simply  a  part  of  the  objec- 
tive law  by  which  any  given  public  service  is  organ- 
ised ;  and  it  may  thus  itself  be  organised  in  the  form 
of  jurisdiction.  A  fault  of  discipline  may  be  fore- 
seen and  defined  by  the  organic  law  of  the  service  and 
no  act  may  be  punished  when  it  falls  within  those 
categories.  So  too  with  the  penalties  concerned. 
Statute  may  define  the  penalty  to  be  pronounced  by 
the  disciplinary  authority  for  any  given  fault. 
Finally  the  disciplinary  penalty  may  be  pronounced 
by  a  real  court  which  assures  the  accused  all  the 
guarantees  of  ordinary  law. 

This  is  certainly  the  way  in  which  disciplinary  re- 
pression is  evolving.  For  some  officials  the  power  to 
discipline  is  exercised  by  real  courts  like  the  Superior 
Council  of  the  Magistracy,  which  is  only  the  Court  of 
Cassation  sitting  in  full  session;  or  like  the  Superior 
Council  of  Public  Instruction.  In  some  depart- 
ments the  scale  of  penalties  is  definitely  established. 
It  is  clear  enough  that  one  day  the  faults  that  are  to 
be  punished  will  be  defined  by  statute. 

The  evolution  of  discipline,  in  fact,  goes,  step  by 
step,  along  the  same  road  as  the  public  services 
towards  autonomy.  We  see  being  built  up  a  penal 


110       LAW    IN    THE    MODERN    STATE 

law  by  the  side  and  yet  outside  of  the  national  penal 
law.  Public  law  is  clearly  no  longer  monistic  in  its 
imperialism. 

Certain  classes  of  officials  are  subject  to  a  discipline 
of  a  particularly  interesting  kind.  These  are  the 
members  of  the  deliberative  assemblies  and  particu- 
larly members  of  parliament. 

The  regulations  of  parliament  are  not  formal  stat- 
utes. They  are  established  by  resolutions  separately 
voted  by  each  chamber.  They  yet  constitute  for 
every  member  a  definite  law.  The  chamber  may  of 
course  modify  its  ordinance,  but  so  long  as  it  exists 
it  controls  the  action  of  the  members.  These  ordi- 
nances constitute  a  penal  law  applicable  to  the  mem- 
bers. They  establish  penalties,  one  of  which — cen- 
sure and  temporary  exclusion — may,  in  the  Chamber 
of  Deputies,  actually  lead  to  imprisonment  (Art. 
126).  This  penal  law  is  applied  either  by  the  presi- 
dent or  by  the  chamber  and  is  obviously  a  sentence 
pronounced  by  a  court.  It  is  difficult  to  reconcile 
all  this  with  the  conception  of  law  as  the  command 
of  a  sovereign  will.  It  is  doubtless  a  general  regula- 
tion. But  it  does  not  emanate  from  a  power  consti- 
tutionally established  to  formulate  statutes  even 
though  it  can  contain  penal  dispositions.  I  have  tried 
to  explain  it  by  suggesting11  that  each  political  as- 
sembly is  an  autonomous  corporation  exercising  over 
itself  and  its  members  a  legislative  power,  so  that  its 
disciplinary  sections  would  be  its  penal  law.  But  it 
llTrait£,  II,  317. 


SPECIAL    STATUTES  III 

is  perhaps  simpler  and  more  accurate  to  see  in  the 
legislature  not  a  corporation  but  an  autonomous  pub- 
lic service  of  which  legislation  is  the  function.  Its 
rules  would  then  be  its  organic  law  and  as  an  auton- 
omous body  it  would  have  its  special  law  like  the 
public  services  of  which  I  have  spoken  above. 


IV 


n 


deliberate  assemblies  are  not  autonomous  cor- 
porations there  are  many  groups  which  have  this 
character.  The  movement  towards  association,  par- 
ticularly in  the  trade  union  world,  most  certainly  re- 
mains the  distinguishing  feature  of  the  end  of  the 
nineteenth  and  the  beginning  of  the  twentieth  cen- 
tury. The  Revolution  did  not  recognise  the  right  of 
association.  Le  Chapelier's  law  expressly  prohib- 
ited professional  groups.12  The  penal  code  prohib- 
ited under  heavy  penalties  every  association  of  more 
than  twenty  persons.13 

It  was  logical  enough.  An  association,  indeed,  is  a 
group  so  formed  in  the  midst  of  the  national  life  as 
to  break  its  absorptive  unity.  The  association  has  its 
law  distinct  from  the  national  law — a  concept  quite 
impossible  in  the  imperialist  theory,  which,  making 
the  individual  a  part  of  the  nation,  submitted  him  to 
the  national  law  as  a  sole  guarantee  of  his  liberty. 

12  June  14-17,  1791. 

13  Arts.  291-2.     [On  the  right  of  association,  cf.  Weill,  Droit 
d'Association,   1893,   and  the  valuable  note  in  Dicey,   Law  and 
Public  Opinion  (2nd  edition),  pp.  467£F.] 


112       LAW    IN    THE    MODERN    STATE 

He  was  compelled  to  renounce  allegiance  to  any 
group  save  the  nation ;  for  that  would  have  been  to 
admit  the  authority  of  a  law  different  from  its  own 
and  so  to  destroy  the  unity  of  sovereign  power. 

Le  Chapelier's  law  expressed  these  ideas  in  their 
full  and  logical  clarity.  In  its  view,  professional  as- 
sociations are  contrary  to  the  principle  of  liberty 
which  is  the  fundamental  basis  of  the  constitution; 
they  must  then  be  prohibited  under  every  shape  and 
form.  Very  notably  it  is  forbidden  for  citizens  of 
the  same  class  or  profession  "to  form  regulations  deal- 
ing with  their  supposed  common  interests."  Such 
a  corporate  law  would  clearly  be  directly  antithetic 
to  the  principle  of  a  unified  legislation. 

Clearly,  the  way  in  which  the  movement  towards 
^association  has  come  into  increasing  existence  in- 
volves the  disappearance  of  the  concept  of  law  as  the 
sovereign  will  of  the  nation.  We  can  no  longer  ac- 
cept the  theory  that  its  statutes  are  not  laws  but  the 
clauses  of  a  series  of  individual  contracts.  That  is  a 
theory  defended  to-day  only  by  antiquarians.  Those 
who  drew  up  Le  Chapelier's  law  were  in  no  wise  de- 
ceived on  this  point.  They  saw  clearly  the  way  in 
which  the  statutes  of  an  association  control  their 
members  and  that  is  why  they  forbade  them  as  con- 
trary to  the  constitution.  The  law  of  1901  on  the 
right  of  association  does  of  course  insist  that  in  theory 
an  association  is  still  governed  by  the  principles  of 
the  civil  code  on  contracts  and  obligations  (Art.  Ill, 

14  Article  2  of  the  law  of  June  14,  1791. 


SPECIAL    STATUTES  113 

tit.  3) .  This  is  merely  a  legislative  error.  And  it  is 
worth  noting  that  the  law  of  1901,  which  is  the  an- 
tithesis of  individualism  and  derived  from  an  evolu- 
tion fatal  to  individualism,  was  drawn  up  by  men 
who  invoked  at  each  stage  traditional  principles.  It 
is  a  new  proof,  amid  a  thousand  others,  that  the  inti- 
mate thought  of  the  legislator  fails  to  seize  the  spirit 
of  that  rule  of  life  of  which  his  own  statute  is  yet  a 
part. 

The  statutes  of  an  association  are  not  the  clauses  of 
a  contract,  but  a  definite  law.  I  cannot  here  enter 
into  the  technical  implication  of  this.  But  the  broad 
lines  are  clear.  The  contract  of  Roman  law,  adopted 
by  the  Napoleonic  code,  is  entirely  an  individualist 
conception.  It  implies  two  declarations  of  will,  each 
with  a  different  object  in  view;  these  declarations 
come  after  an  agreement  by  which  they  are  mutually 
determined.  The  psychological  character  of  a  con- 
tract is  clearly  envisaged  by  any  one  who  studies  the 
formula  of  stipulation  in  Roman  law.  But  when 
several  wills  come  together  without  prearranged 
agreement,  when  they  have  the  same  object  without 
being  mutually  determined  but  with  a  common  pur- 
pose in  view,  it  is  not  a  contract  that  they  make.  We 
have  what  is  to-day  termed  common  action  in  collab- 
oration, what  the  Germans  call  gesammtakt,  verein- 
barung;  we  may  use  the  word  contract,  but  we  use  it 
in  a  sense  quite  different  from  its  original  meaning. 

In  forming  an  association  there  is  no  contract  be- 
cause the  members,  in  view  of  their  common  purpose, 


114      LAW    1N    THE    MODERN    STATE 

all  will  the  same  thing.  Their  declarations  of  in- 
tention are  not  mutually  determined,  they  simply  con- 
cur in  a  common  end.  There  is  no  agreement  of  will 
between  the  thousands  of  persons  who  may  belong  to 
the  same  association  without  knowing  each  other. 

On  the  other  hand,  contract  always  gives  rise  to 
what  is  called  a  subjective  legal  situation.  In  these 
technical  terms  contract  creates  a  concrete  and  imme- 
diate bond  of  law  between  the  two  contracting 
parties  of  whom  one  must  do  something  and  the  other 
can  command  the  doing  of  it.  The  situation  is  en- 
tirely individual;  it  binds  these  two  persons  and  no 
others.  It  is  a  well-known  principle  of  the  civil  law 
that  agreements  only  affect  the  contracting  parties. 
The  situation  is,  moreover,  a  temporary  one;  when 
the  debtor  has  fulfilled  his  obligations  the  bond  of 
law  ceases  to  have  any  existence. 

The  statutes  of  an  association  do  not  create  a  sub- 
jective legal  situation,  they  permanently  govern  the 
administration  of  the  group.  Its  members  are  defi- 
nitely bound  by  certain  obligations,  as,  for  instance, 
the  obligation  to  pay  their  subscription.  This  obli- 
gation is  not  born  from  contract.15  It  is  the  result  of 
joining  the  society  which  involves  submitting  to  its 
regulations.  The  obligation  to  pay  the  subscription 
is  thenceforward  a  legal  obligation  entirely  analogous 
to  paying  one's  taxes.  He  may  have  to  pay  it  even 
when  it  is  raised  in  amount  if  the  general  assembly 

15  [For  the  different  attitude  of  the  common  law,  cf.  Laski,  The 
Personality  of  Associations,  29  Harv.  L.  Rev.,  404.] 


SPECIAL    STATUTES  1 15 

of  the  association  so  decides,  and  that  despite  his  op- 
position. He  can  of  course  resign  from  the  associa- 
tion; he  always  owes  his  annual  subscription,  and 
even  more,  if  the  rules  so  decide. 

The  rules  are  a  real  law  also  in  that  they  settle  the 
purpose  of  the  association;  and  by  setting  its  purpose 
they  settle  its  legal  capacity.  The  law  of  1901 
rightly  made  its  purpose  the  essential  element  in  the 
association.  The  third  article  gave  legal  existence  to 
every  association  with  a  legitimate  purpose.  The 
sixth  article  permitted  every  association  of  which  the 
purpose  and  formation  were  declared  and  published 
to  acquire  such  immovable  goods  as  were  necessary 
for  the  accomplishment  of  its  end.  Since  this  end  is 
determined  by  its  rules,  they  form  an  organic  law. 

Nor  is  this  all.  The  association  has  a  legal  ca- 
pacity which  can  be  exercised  only  by  organs ;  these 
are  formed  by  the  rules  which  determine  simultane- 
ously their  competence.  Here,  again,  the  pressure 
of  a  real  organic  law  is  obvious.  Every  act  done  in 
violation  of  the  rules,  for  example,  without  the  ap- 
proval of  the  general  body  of  the  association,  where 
that  is  necessary,  or  by  the  president  alone,  when  the 
co-operation  of  the  directors  is  demanded,  is  null  and 
void.  This  nullity  can  be  brought  into  play  not  only 
by  the  society  but  also  by  third  parties.  It  is  thus 
impossible  to  say  that  the  rules  are  the  clauses  of  a 
contract.  On  the  contrary,  they  are  above  all  a  law. 
They  are  a  general  permanent  regulation  the  viola- 
tion of  which  will  be  declared  illegal  by  the  courts. 


Il6       LAW    IN    THE    MODERN    STATE 

This  is  true  of  all  associations,  even  of  those  of  a 
public  character.  Their  end  is  not  determined,  and 
their  agents  are  not  instituted,  by  the  decree  of  recog- 
nition. These  are  to  be  found  in  the  rules:  "They 
(associations  pursuing  a  public  purpose)  can  do 
every  civil  act  which  is  not  prohibited  by  their  rule" 
(Art.  II,  Sec.  i).  The  decree  of  recognition  only 
proves  the  rules  which  remain  as  the  organic  law  of 
the  group. 

Positive  French  law,  like  most  legal  systems,  dis- 
tinguishes the  association  from  the  civil  or  commer- 
cial company.  The  company  is  formed  for  purposes 
of  gain.  The  association  has  a  disinterested  end  in 
view.  I  cannot  here  discuss  whether  this  distinction 
is  well  founded.  In  any  case,  the  fact  that  the  mem- 
bers of  a  society  do  or  do  not  pursue  an  end  that  is 
profitable,  while  it  may  explain  the  slow  advent  of 
freedom  of  association  and  the  retention,  even  to-day, 
of  certain  restrictions  that  are  without  justification, 
can  have  no  influence  on  the  nature  of  these  rules. 
Like  the  rules  of  associations,  those  of  a  company  are 
real  laws  which  determine  its  end  and  its  capacity, 
create  its  organs,  regulate  its  operation  and  thus  de- 
termine the  conditions  under  which  its  transactions 
will  be  valid.  This  may  not  be  important  for  a  small 
company;  but  it  is  of  capital  significance  for  the  great 
organisations  of  which  the  number  and  importance 
are  growing  from  day  to  day. 

Every  modern  country,  and  very  notably  France, 
is  a  mass  of  groups.  We  have  associations,  federa- 


SPECIAL    STATUTES  117 

tions  of  associations,  trade  unions,  federations  of  trade 
unions,  financial  companies,  industrial  companies, 
mining  companies,  insurance  companies,  public  con- 
tractors. Each  constitutes  a  social  group  with  its 
own  law  of  life.  The  theory  of  the  modern  state  is 
therefore  compelled  to  adapt  itself  to  the  existence  of 
these  powerful  groups.  It  must  determine  a  method 
of  their  co-ordination.  It  must  settle  their  relations 
with  the  government  that  exercises  public  power. 

It  is  the  gravest  of  problems.     Certainly  it  cannot 
be  solved  by  maintaining  the  traditional  notion  of 
sovereignty  and  statute.     Conservative  thinkers  have 
believed  that  it  was  possible  to  prevent  a  formation 
and  development  of  their  groups.     Until  1867  gov- 
ernmental authorisation  was  necessary  to  the  forma- 
tion of  a  limited  company  (Cf.  English  Companies 
Act  of  1862).    The  right  to  form  trade  unions  was 
granted  in  a  limited  fashion  in  1884.     It  was  not  till 
1901  that  any  general  freedom  of  association  was  es- 
tablished;  and   even   then   a   system   of   limitation 
was  erected.     But  erected  in  vain.     The  movement 
towards    association    swept    everything    before    it. 
Group  after  group  was  formed  despite  the  anathema 
of  the  impenitent  individualist.     The  collectivist  an- 
swered that  the  state  would  absorb  these  groups.    He 
saw  in  the  trade  unions  only  an  instrument  of  war  in 
the  class  struggle  which  could  lead  to  the  nationali- 
sation of  the  great  capitalist  societies.     It  was  an  er- 
ror not  less  great  than  that  of  the  individualists.     It 
found  its  root  in  the  same  imperialist  conception  of 


Il8       LAW    IN    THE    MODERN    STATE 

public  laws,  the  same  notion  of  an  all-powerful  state 
exercising  unlimited  command  over  a  million  of  in- 
dividuals. At  bottom  the  collectivist  system  is  only., 
an  extreme  form  of  the  imperialist  theory. 

The  facts  made  havoc  of  these  theories.  Prophecy 
may  be  a  dangerous  adventure,  but  the  immense  de- 
velopment of  group  life  in  every  field  of  social  activ- 
ity seems  so  general,  so  spontaneous,  and  so  charac- 
teristic of  our  time  as  to  demand  the  admission  that 
it  contains  at  any  rate  the  elements  of  the  social  or- 
ganisation of  the  future.  Already  our  law  has  ceased 
to  be  based  on  the  idea  of  a  unified  and  indivisible 
sovereignty.  It  is  and  it  will  be  an  objective  law  of 
government;  but  it  is  the  law  of  government  which 
does  not  command.  It  is  the  law  of  a  government 
which  serves  the  public  need  and  secures  the  co-ordi- 
nation of  the  modern  corporate  life. 


The  next  phenomenon  we  have  to  discuss  reveals 
even  more  completely  the  collapse  of  the  old  concep- 
tion of  law.  Statutory  agreements  are  in  their  nature 
simple  enough ;  they  are  laws  properly  so  called,  gen- 
eral regulations  of  a  permanent  character  which  set- 
tle for  an  indeterminate  length  of  time  the  situation 
of  individuals  and  determine  capacity  under  the 
aegis  of  a  legal  sanction.  They  are  not  the  work  of  a 
unilateral  will  which  commands.  They  are  not  the 
work  of  a  collaboration  of  wills  like  the  rules  of  an 


SPECIAL    STATUTES  Iff 

association  or  a  decentralised  public  service.  They 
are  the  work  of  wills  which  really  form  an  agree- 
ment. The  word  contract  is  often  used  to  describe 
them;  but  since  that  has  a  technical  meaning  in  the 
civil  law  it  is  better  to  use  the  term  agreement.  The 
agreement  is  formed  between  two  or  more  groups. 
It  creates  a  set  of  rules  which  applies  not  only  to 
those  who  belong  to  those  groups  at  the  time  when 
the  agreement  is  made  but  also  both  to  those  who  will 
later  belong  to  them  and  to  third  parties  who  do  not 
belong. 

A  statutory  agreement  is  not  a  new  phenomenon  in 
the  history  of  law.  It  is  of  course  absolutely  anti- 
thetic to  the  imperialist  notion.  If  law  is  by  defini- 
tion the  command  of  a  sovereign  power,  it  cannot 
possibly  be  at  the  same  time  an  agreement;  the  two 
terms  are  mutually  exclusive.  That  is  why  statutory 
agreements  have  made  their  appearance  in  legal  his- 
tory at  times  such  as  the  feudal  period  when  the  idea 
of  sovereignty  as  the  imperium  of  the  state  was  in 
some  degree  submerged.  I  pointed  out  earlier  how 
the  Roman  conception  of  imperium  declined  without 
disappearing  completely  and  how  the  feudal  sys- 
tem, being  based  above  all  on  a  regime  of  contract, 
created  between  men  a  series  of  reciprocal  rights  and 
duties.  The  king  as  suzerain  superior  was  charged 
with  the  assurance  of  their  fulfilment,  because  it  was 
his  business  to  secure  peace  by  means  of  justice.  No 
society  was  more  strongly  intrenched  than  the  French 
society  of  the  thirteenth  century,  despite  the  violence 


120       LAW    IN    THE    MODERN    STATE 

that  disturbed  it;  for  no  epoch — and  the  twentieth 
century  no  more  than  any  other — has  been  able  to  free 
itself  from  violence.  Feudal  anarchy  and  feudal 
barbarism  have  become  cliches  we  no  longer  use. 
The  fact  is  that  the  feudal  regime  was  essentially  both 
legal  and  contractual. 

It  is  to-day  quite  clear  that  many  social  relations 
are  governed  by  rules  which  emanate  not  from  a 
unilateral  will  but  from  contracting  purposes.  Now 
since  this  same  phenomenon  was  produced  in  that 
feudal  period  when  the  notion  of  sovereignty  had  al- 
most completely  disappeared,  it  may  be  urged  that 
the  renewed  appearance  of  statutory  agreements  is  so 
significant  as  above  all  to  make  clear  the  changing  na- 
ture of  the  state.  Wide  enough  already,  its  domain 
every  day  extends ;  it  has  basic  elements  which,  while 
they  are  distinct  because  they  apply  to  different  situ- 
ations, each  display  very  clearly  the  combination  of 
statute  and  agreement.  The  first  type  is  the  collec- 
tive labour  agreement  and  the  second  the  delegated 
operation  of  a  public  utility.  The  collective  labour 
agreement  is,  it  must  be  admitted,  a  legal  institution 
still  in  process  of  formation.  It  intervenes  between 
the  employing  groups  and  the  workers  to  determine 
the  conditions  under  which  the  individual  contracts 
in  the  industry  concerned  should  be  arranged.  As  a 
rule,  it  arises  out  of  a  strike  and  puts  an  end  to  it. 
But  often  enough  the  problem  of  its  interpretation 
soon  raises  new  difficulties.  Students  of  the  civil  law 
have  tried  to  give  it  a  theoretical  basis  by  applying  to 


SPECIAL    STATUTES  121 

it  the  classic  concept  of  mandate,  but  they  have  failed. 
The  Societe  d'Etudes  Legislatives  appointed  a  com- 
mission which,  despite  the  ability  and  knowledge  of 
its  members,  was  compelled  to  give  up  the  proposed 
statute  it  had  attempted  to  formulate ; 16  and  the 
Chamber  of  Deputies  has  not  ventured  to  begin  the 
discussion  of  the  two  proposals  that  have  been  laid 
before  it.1T 

The  failure  of  the  society's  commission  is  not  as- 
tounding. It  tried  to  apply  the  traditional  concep- 
tions of  individual  contract  and  the  mandate  to  an 
act  which  is,  in  reality,  not  a  contract  at  all  but  the 
establishment  of  a  permanent  rule  governing  individ- 
ual contracts  that  are  still  to  be  made.  Collective 
labour  agreement  can  reveal  neither  its  value  nor  its 
implications  until  the  employers  and  the  workmen  in 
any  given  industry  are  so  strongly  organised  both  in 
structure  and  numbers  as  to  make  the  trades  con- 
cerned almost  a  legally  organised  body.  It  is  then 
that  the  collective  agreement  will  so  regulate  the  re- 
lations of  capital  and  labour  as  to  be  the  law  of  an 
organised  profession.  It  will  thus  achieve  the  co- 
ordination of  classes  by  a  series  of  collective  con- 
tracts— by  a  series  of  agreements  between  the  differ- 
ent groups  in  which  each  class  is  integrated.18 

It  is  difficult  to  say  when  the  evolution  will  be  ac- 

16  Bulletin  de  la  Societe  d'Etudes  Legislatives,  1907,  pp.  180, 
505,  espec.  the  report  of  M.  Colson. 

17  Bill  of  M.  Doumergue,  July  2,  1906;  Bill  of  M.  Briand, 
July  11,  1910. 

18  [Cf.  the  underlying  conception  of  the  Whitlev  Reports.  1 


122       LAW    IN    THE    MODERN     STATE 

complished,  but  its  gradual  development  is  perfectly 
clear.  Until  that  development  is  complete,  the  inter- 
vention of  parliament  will  serve  no  useful  purpose. 
In  any  case,  the  condition  of  its  efficacious  interven- 
tion is  the  absence  of  any  individualist  notion  of  con- 
tract or  mandate.  It  must  be  inspired  in  its  action 
by  the  idea  of  a  law  of  conduct  based  on  agreement 
and  applied  to  the  relations  of  two  social  groups. 


VI 


There  is  another  domain,  however,  where  statu- 
tory agreement  has  a  perfectly  defined  character. 
The  courts  have  often  already,  perhaps  indeed  uncon- 
sciously, drawn  important  conclusions  therefrom.  I 
mean  where  a  public  authority  confides  some  business 
to  a  private  contractor. 

In  such  an  agreement  the  public  authority,  whether 
state,  province,  town  or  colony,  charges  a  private  citi- 
zen, as  a  rule  a  company,  with  assuring  the  operation 
of  a  public  service  under  certain  determined  condi- 
tions which  are  comprised  in  a  deed  called  its  char- 
ter. The  company  accepts  the  task  and  this  conces- 
sion has  the  same  general  character  all  over  the 
world.  The  subjects  of  such  a  concession  to-day  are 
for  the  most  part  those  of  transportation  and  lighting. 

Such  a  concession  is  a  definite  agreement.  It  is 
preceded  by  negotiations  which  lead  to  an  under- 
standing between  the  administration  and  the  com- 
pany which  takes  charge  of  the  work.  It  comprises 


SPECIAL    STATUTES  123 

a  number  of  clauses  of  a  contractual  character  which 
give  rise  to  a  subjective  legal  situation;  the  relation 
between  the  public  authority  and  the  company  being 
thenceforward  the  relations  of  debtor  and  creditor. 
Some  of  these  clauses  deal  entirely  with  the  relations 
of  the  two  parties;  others  contain  material  which 
would  not  be  agreed  upon  if  the  public  service  were 
directly  managed  by  the  state.  Such,  for  example, 
are  the  financial  clauses  which  we  find  in  almost  all 
these  charters — clauses  which  deal  with  grants  in  aid 
or  with  the  guarantees  of  interest  or  with  reductions 
promised  by  the  company  or  with  the  division  of 
profits.  All  these  clauses,  and  others  of  a  similar  na- 
ture, are  regulated  by  the  rules  of  the  civil  code  deal- 
ing with  contracts;  since  they  are  effective  only  for 
the  contracting  parties,  they  are  in  fact  statutory  con- 
ventions. 

But,  in  reality,  such  clauses  are  the  least  important 
part  of  the  charter.  Most  of  them  are  of  an  entirely 
different  character.  Most  of  them  deal  with  the  con- 
ditions under  which  the  public  utility  shall  be  oper- 
ated. If,  for  example,  it  is  a  railway  or  a  tramway 
service,  the  agreement  settles  what  lines  are  to  be  con- 
trolled and  operated,  how  many  trains  shall  be  run, 
how  the  safety  of  the  employees  and  travellers  shall 
be  secured.  Other  clauses  deal  with  the  conditions 
under  which  the  public  may  use  the  service  pro- 
vided; the  price  of  tickets,  the  gas  rate,  the  electric 
light  rate.  In  most  charters  there  are  clauses  which 
settle  how  many  hours  the  company's  servants  shall 


124       LAW    IN    THE    MODERN    STATE 

work,  the  minimum  wage  they  shall  be  paid,  the  con- 
ditions of  employment,  and  the  organisation  of  a  pen- 
sion fund.  Such  charters  give  the  service  concerned 
practically  a  statutory  organisation.  In  France  by 
the  Millerand  decrees  of  1899,  clauses  dealing  with 
the  maximum  hours  of  work  and  the  minimum  wage 
must  be  inserted  in  all  state  contracts  and  may  be 
inserted  in  those  made  by  departments,  communes, 
and  the  different  public  offices ;  and  in  most  of  them 
they  are  so  inserted. 

Such  clauses  have  less  a  contractual  than  a  legisla- 
tive character;  they  are  the  statutory  basis  of  the 
service  concerned.  Were  the  service  to  be  managed 
by  the  state  directly,  all  such  matters  would  either  be 
settled  by  statute  or  by  administrative  regulation. 
No  one  would  then  deny  their  inherent  statutory 
character;  but  the  mere  fact  that  they  are  inserted  in 
a  charter  can  not  change  their  character.  They  still 
remain  general  regulations  which  any  person,  either 
directly  or  indirectly  interested  in  the  service,  can 
bring  into  operation.  That  would  not  be  the  case  if 
these  clauses  were  merely  contractual.  Such  a  con- 
tract is  effectual  only  between  the  parties  to  it.  We 
are  compelled,  therefore,  to  call  them  statutes;  but 
because  they  are  established  after  an  agreement  be- 
tween the  government  and  the  company  they  are 
really  "lois-conventions" 

Clearly  statute,  therefore,  is  no  longer  conceived  as 
the  sovereign  command  of  the  state.  Its  strength 
derives  from  the  f aqt  that  it  is  to  serve  the  public  in- 


SPECIAL    STATUTES  12^ 

terest.  It  organises  the  fulfilment  of  a  public  need. 
When  the  organisation  and  functioning  of  a  public 
utility  are  regulated  by  a  unilateral  act  of  the  state  its 
statute  remains  unilateral.  But  when,  as  with  a  pub- 
lic utility,  confided  to  private  enterprise,  its  organi- 
sation and  functioning  are  settled  by  agreement,  the 
statute  which  settles  its  situation  is  a  statutory  con- 
vention. It  is  nevertheless  still  a  statute  with  all  the 
characters  of  a  statute,  above  all  its  character  of  a 
general  regulation  to  which  a  legal  sanction  is  at- 
tached. 


VII 


This  is  not  mere  theory.  The  decisions  of  the 
Council  of  State  are  beginning  little  by  little  to  rec- 
ognise in  the  clauses  of  such  a  charter  a  statutory  con- 
vention. The  terminology  of  the  court  and  of  the 
Department  of  Justice  is,  indeed,  still  uncertain  and 
inexact,  in  that  it  reveals  on  occasion  the  persistence 
of  the  contractual  idea.  But  the  phrases  matter  lit- 
tle; the  real  fact  is  that  the  decisions  definitely  imply 
the  recognition  that  such  charters  are  legislative  in 
character  and  the  evolution  I  have  described  is  thus 
sanctioned  by  the  highest  authority.  If  such  a  char- 
ter is  a  statute,  with  the  legal  sanction  that  attaches  to 
statute,  it  follows  that  every  administrative  act  done 
in  violation  of  it  must  be  void  and  every  person  af- 
fected by  that  act  can  attack  it  before  the  courts. 
This  is  actually  what  has  happened  in  the  cases. 


126       LAW    IN    THE    MODERN    STATE 

I  have  already  cited  the  Storch  cases  of  1905,  in 
which  the  Council  of  State  admitted  the  plea  that 
the  prefect  could  not  permit  a  tramway  company  to 
perform  an  ultra  vires  act.19 

It  must  be  said,  however,  that  the  real  problem  in 
this  decision  was  not  so  much  the  violation  of  the 
charter  as  the  police  power  of  the  prefect.20  In  the 
following  year  the  Council  of  State  accepted  the  plea 
of  an  association  of  land  owners  and  taxpayers 
against  the  decision  of  a  prefect  of  the  Gironde  who 
had  refused  to  compel  a  company  to  operate  a  certain 
line  in  conformity  with  its  charter.  Though  the  de- 
cision bears  marks  of  hesitation,  it  opened  up  a  new 
path.21 

In  1907,  the  Council  of  State,  acting  on  the  conclu- 
sions of  M.  Teissier,  of  the  Department  of  Justice, 
admitted  a  statutory  character  for  the  clauses  of  the 
charters  of  the  great  railway  companies.22  Finally 
in  1912  in  the  Marc  case  the  Council  of  State  finally 
settled  that  every  charter  has  a  legislative  character. 
The  lighting  service  of  Paris  is  settled  by  a  regula- 
tion affixed  to  the  municipal  budget  in  accordance 
with  the  charter  voted  by  the  town  council  and  ap- 
proved by  decree  of  1907.  By  a  decision  of  1908 
the  prefect  of  the  Seine  decided  that  the  provision  of 
lighting  for  private  streets  and  land  thereto  adjoin- 

19  Chap.  II,  §  vi,  supra. 

20Recueil,  1905,  p.  117. 

21Recueil,  1906,  p.  961;  Sirey,  1907,  iii,  33. 

22  Recueil,  1907,  p.  820. 


SPECIAL    STATUTES  '127 

ing  should  be  made  under  different  conditions  from 
those  for  public  streets  and  the  land  by  the  river. 
The  President  of  the  Associated  Chamber  of  Paris 
Landowners  went  to  the  courts  on  the  ground  that  the 
charter,  a  law  of  service  imposed  on  the  administra- 
tion no  less  than  on  private  citizens,  had  been  vio- 
lated. The  Council  of  State  accepted  the  plea  and 
decided  in  substance  that  the  decision  of  the  prefect 
of  the  service  was  in  violation  of  the  charter.23  This 
surely  can  only  mean  that  the  charter  is  a  statute;  for 
an  action  of  ultra  vires  is  a  good  plea  only  when  a 
statute  has  been  violated. 

The  actual  decision,  no  less  than  the  governmental 
note  upon  it,  is  somewhat  confused;  the  court  still 
speaks  in  terms  of  contract  and  does  not  admit  that 
the  charter  is  really  a  statute  controlling  a  public  util- 
ity. If  it  is  a  contract,  it  is  inexplicable  how  private 
citizens  who  are  not  parties  to  it  can  take  advantage 
of  it.  It  is  surely  curious  to  annul  an  act  on  the 
ground  that  it  violates  a  supposed  contract  at  the  re- 
quest of  persons  who  have  no  connection  with  it. 
The  contradiction  is  clearly  recognised  in  the  govern- 
mental note  in  the  decision:  "in  pure  theory  the  ar- 
gument of  the  town  is  certainly  right;"  that  is  to  say, 
the  plea  of  ultra  vires  is  unacceptable.  M.  Jeze  has 
rightly  pointed  out  how  involved  are  the  implica- 
tions of  such  an  attitude:  "The  government,"  he 
says,24  "believes  that  in  pure  theory  the  plea  is  bad, 

23  Recueil,  1912,  p.  75 ;  Revue  de  Droit  Public,  1912,  p.  43. 

24  Revue  de  Droit  Public,  1912,  p.  46. 


128       LAW    IN    THE    MODERN    STATE 

but  we  cannot  condemn  with  energy  a  theory  which 
finds  favour  with  the  Council  of  State.  That  court 
in  fact  must  accept,  with  the  great  majority  of  mod- 
ern writers,  the  theory  that  the  charter  is  not  a  con- 
tract. Only  in  that  event  can  its  decisions,  unques- 
tionable in  their  result,  be  right  in  their  theory.  No 
theory  is  good  that  does  not  fit  the  facts ;  the  Council 
of  State  recognises  that  its  theory  is  unworkable;  let 
it  change  it."  M.  Jeze  is  profoundly  right;  the  the- 
ory is  only  the  hypothetical  synthesis  of  the  facts  we 
are  given.  If  one  only  of  those  facts  does  not  fit  the 
theory,  it  must  be  discarded  for  a  more  adequate  one. 


VIII 


From  another  point  of  view  the  non-contractual 
character  of  the  charters  of  railway  and  tramway 
companies  is  apparent.  It  is  doubtless  true  that  some 
of  its  clauses,  like  those  dealing  with  finance,  create 
a  subjective  legal  situation,  and  are  thus  contractual. 
But  that  is  not  the  case  with  the  clauses  which  deal 
with  the  operation  of  the  service.  The  government 
has  the  power  to  modify  them  by  its  own  act,  which 
would  not  be  the  case  if  the  relationship  were  one  of 
contract.  Nor  is  that  explanation  adequate  which 
finds  the  source  of  this  power  in  the  fact  that  there  is 
a  contract  but  that  it  is  made  with  the  state.  It  is  a 
dangerous  sophism  of  which  the  result  is  to  give  a 
legal  basis  to  arbitrary  public  power.  Contract 
means  one  thing  and  one  thing  only.  It  means  the 


SPECIAL    STATUTES 

same  thing  in  public  law  as  in  private.  The  finan- 
cial clauses  are  contractual,  and  neither  of  the  parties 
can  modify  them,  even  if  an  indemnity  is  offered. 

That  part,  however,  of  the  charter  which  is  a  statu- 
tory convention  and  governs  the  operation  of  the  serv- 
ice cannot  be  completely  withdrawn  from  the  action 
of  the  administration.  It  is  not  to  be  forgotten — it  is 
the  fundamental  idea  of  modern  public  law — that  the 
first  function  of  government  is  so  to  respond  to  the 
public  needs  as  to  satisfy  the  economic  situation  of  the 
country.  Government  cannot  abdicate  that  power; 
it  must  therefore  modify  in  the  public  interests  the 
means  by  which  a  public  utility  even  in  private  hands 
is  operated.  When  it  does  that,  it  does  no  more  than 
fulfil  its  duty  even  when  it  thereby  increases  the  cost 
of  operation.  Nor  can  its  decision  be  attacked  as 
ultra  vires.  It  does  not  give  rise  to  a  subjective  legal 
situation;  what  it  does  is  simply  to  modify  the  legal 
regime  under  which  a  given  public  utility  operates. 

The  Council  of  State  has  often  recognised  this  gov- 
ernmental power.  In  a  case  already  cited  it  decided 
that  the  governmental  ordinance  of  1901  was  not 
ultra  vires  because  it  increased  the  burden  of  the  great 
railway  companies  which  were  operated  under  the 
regulation  of  i846.25  The  court  has  decided  simi- 
larly in  nine  decisions  relative  to  the  decree  of  the 
prefect  of  the  service  which  imposed  on  the  company 
which  ran  the  metropolitan  railway  certain  obliga- 
tions for  securing  the  safety  of  passengers  heavier 

25Recueil,  1907,  p.  913;  Sirey,  1908,  iii,  p.  1. 


130       LAW    IN    THE    MODERN    STATE 

than  the  charter  had  originally  contemplated.  Sim- 
ilarly in  igio,26  it  upheld  a  decision  of  the  prefect  of 
the  Bouches  du  Rhone  increasing  the  cost  of  opera- 
tion of  the  Marseilles  tramway  company.27 

What  can  be  done  by  ordinance  can  obviously  be 
done  by  formal  statute.  This  was  clearly  recognised 
by  the  Minister  of  Public  Works  in  the  memorandum 
to  the  scheme  relative  to  the  union  of  railways  and 
waterways  of  1908  which  notably  modified  the  sys- 
tem of  railway  transportation.  The  Chambers  have 
also  implicitly  recognised  it  when  they  voted  the  pen- 
sion laws  of  1909  and  1911,  despite  the  protest  of  the 
companies  involved. 

One  question  remains.  When  government,  by  its 
unilateral  decision,  modified  the  conditions  under 
which  a  public  utility  is  privately  exploited  and 
makes  them  more  onerous,  has  the  private  company  a 
right  to  compensation?  In  the  decision  cited  above 
the  Council  of  State  has  decided  in  the  affirmative; 
as  was  implicitly  recognised  by  statute  in  1908.  The 
Council  of  State  has  not  hesitated  to  recognise  and 
to  sanction  under  the  principle  compensation  for 
the  new  burdens  the  state  has  imposed.  It  appears  to 
have  based  its  action  on  the  theory  that  the  charter  is 
a  contract.  Such  an  argument  is  in  fact  contradic- 
tory; for  if  all  the  clauses  of  the  charter  are  contrac- 
tual, the  administration,  even  when  it  pays  compensa- 

26  Recueil,  1910,  p.  97. 

27  Recueil,  1910,  p.  216;  Revue  de  Droit  Public,  1910,  p.  270. 


SPECIAL    STATUTES  131 

tion,  ought  not  to  have  the  power  of  unilateral  modi- 
fication. 

The  truth  is  that  the  real  idea  involved  is  that  of 
the  responsibility  of  the  state.  A  public  utility  is 
operated  in  the  general  interest.  If  its  operation  re- 
sults in  special  damage  to  interested  parties,  the  na- 
tional exchequer  ought  to  make  the  reparation.  In 
the  case  discussed,  this  explanation  clearly  fits  the 
facts;  the  state  is  simply  responsible  for  the  special 
prejudice  it  has  caused  in  the  public  interest.  But  I 
shall  discuss  the  notion  of  responsibility  in  a  later 
chapter. 

However  this  may  be,  it  is  clear  that  the  clauses  of 
those  charters  which  regulate  the  operation  of  public 
utilities  are  definite  statutes,  even  though  they  are  es- 
tablished as  the  result  of  an  agreement  between  the 
government  and  a  private  company.  They  are  statu- 
tory conventions  and  clearly  show  how  the  imperial- 
ist theory  of  the  state  is  passing  away. 


CHAPTER  V 
ADMINISTRATIVE  ACTS 

SIMILAR  and  parallel  evolution  may  be  observed  in 
relation  to  governmental  activity.  The  imperialist 
system  regarded  governmental  action  as  unique  in 
that  it  was  a  manifestation  of  sovereign  authority. 
Governmental  action  is  undoubtedly  different  from 
statute  in  that  the  one  is  the  act  of  an  individual  offi- 
cial, the  other  of  a  parliamentary  order.  This  dis- 
tinction was  not  always  perceived.  It  was  customary 
to  see  an  administrative  act  in  every  order  of  the  ex- 
ecutive power  or  its  agents,  whether  an  ordinance,  an 
individual  decision,  or  even  the  performance  of  a 
simple  menial  task.  Those  were  "administrative  acts 
of  some  sort  or  kind"  of  which  the  Act  of  Fructidor 
i6th  of  the  year  III  speaks.  There  was  no  question, 
of  course,  as  to  action  by  the  courts ;  no  analysis  was 
made  of  the  character  proper  to  judicial  functions. 

A  judicial  power  which  belongs  to  the  courts  has 
been  instituted.  All  acts  which  emanate  from  them 
have  a  judicial  character  just  as  all  acts  done  by  the 
agents  of  the  executive  are  administrative  acts.  For 
those  agents,  however  different  their  situation  may 
be,  the  fundamental  fact  remains  that  they  possess  a 

132 


ADMINISTRATIVE    ACTS  133 

common  character  due  to  their  relation  to  the  execu- 
tive; they  have  some  measure  of  public  authority. 
They  can,  of  course,  intervene  only  within  the  limits 
of  statute;  but  whatever  they  do  has  a  certain  sov- 
ereign character,  and  cannot  therefore  be  dealt  with 
by  the  courts  whose  competence  is  limited  to  the  acts 
of  private  citizens.  The  Act  of  Fructidor  already 
cited  is  as  general  and  formal  as  possible  on  this 
point:  "The  courts  are  strictly  prohibited  from  tak- 
ing cognisance  of  administrative  acts  of  any  kind." 

The  imperialist  conception  of  an  administrative 
act  is  thus  simple.  Since  it  is  the  act  of  a  govern- 
mental official,  it  escapes  the  control  of  the  courts. 
It  is  easy  to  imagine  how  this  would  impress  the 
average  citizen ;  and  indeed  the  French  mind  has  still 
a  sort  of  superstitious  terror  in  the  faith  of  govern- 
ment, a  terror  which  it  retains  even  though  the  char- 
acter of  sovereign  power  has  little  by  little  disap- 
peared. The  administration,  indeed,  still  retains  a 
special  character;  but  this  character  is  not  derived 
from  a  supposed  sovereignty  without  limit.  The  na- 
ture of  an  administrative  act  is  not  derived  from  its 
origin  but  from  its  purpose.  It  is  still  an  individual 
act  done  for  a  public  end. 

This  is  a  transformation  exactly  similar  to  that  of 
statute.  A  statute  was  a  general  order  derived  from 
a  sovereign  will ;  it  has  become  a  rule  established  to 
supply  some  public  need.  An  administrative  act  was 
clothed  with  sovereignty  because  it  was  an  act  of  the 
agent  of  the  executive  power;  it  has  become  the  act 


134       LAW    IN    THE    MODERN    STATE 

of  an  individual  of  which  the  character  is  derived 
solely  from  the  end  it  serves. 


Naturally  this  transformation  has  not  been  com- 
pleted in  a  day.  It  is  the  product  of  a  labour  now 
almost  a  century  old,  and  the  theory  that  has  gone  to 
its  making  is  of  sufficient  interest  to  deserve  more 
than  passing  mention.  A  theoretical  distinction  has 
been  made  between  administrative  acts  done  under 
the  cloak  of  sovereign  power  and  the  mere  fulfilment 
of  orders  by  a  government  servant  technically  unre- 
lated to  sovereign  authority.  This  distinction  was 
first  formulated  by  M.  Laferriere  in  his  great  book 
which  appeared  in  1887*  and  marks  a  fundamental 
epoch  in  the  evolution  of  public  law.  But  the  the- 
ory was  based  upon  an  earlier  preparation  and  came 
into  being  through  a  cause  entirely  strange  to  the 
problem  of  the  real  nature  of  administrative  acts. 

I  pointed  out  in  the  beginning  of  this  chapter  how, 
from  the  sovereign  power  attributed  to  every  admin- 
istrative act,  it  was  concluded  that  no  authority,  not 
even  the  courts,  could  pass  upon  the  legality  of  ad- 
ministrative action.  The  constitution  of  the  year 
VIII  indeed  has  given  the  Council  of  State  the  task 
of  "solving  difficulties  which  arise  from  administra- 
tion." Certain  consular  and  imperial  decrees 2  had 

1  Traite  de  la  Jurisdiction  Administrative. 

2  Consular  Decree  of  5th  Nevose  Year  VIII;  imperial  decrees 
of  June  11  and  Jujie  22,  1806. 


ADMINISTRATIVE    ACTS  135 

given  it  an  organisation;  and  Napoleon  created  a 
commission  to  prepare  reports  for  the  general  assem- 
bly. Such  was  the  beginning  of  the  Council  of  State 
as  a  court3 

Despite  these  powers,  the  Council  of  State,  in  the 
traditional  phrase,  exercised  only  an  indirect  justice; 
even  in  semi-administrative  questions  it  only  gave 
advice;  and  the  decision  always  remained  with  the 
government.  With  both  the  legality  and  the  results 
of  executive  action  the  government  continued  to  deal. 
Prefectoral  councils  were  created  in  the  departments 
and  were  given  an  extensive  judicial  power  of  pass- 
ing upon  administrative  acts;  but  their  courts  were 
always  composed  of  administrators,  nominated  and 
dismissed  at  the  will  of  government.  They  thus  pre- 
sented no  guarantee  of  indifference  and  capacity;  and 
the  fact  that  these  deliberations  were  conducted  under 
the  presidency  of  the  prefect,  an  immediate  agent  of 
the  government,  made  them  useless. 

Under  these  conditions  a  twofold  movement  grew 
up.  On  the  one  hand  it  was  urged  that  the  special 
administrative  court  should  be  abolished  and  every 
case  submitted  to  the  control  of  the  ordinary  courts; 
on  the  other  hand  legal  theorists  tried  to  limit  the 
number  of  cases  where  the  intervention  of  an  admin- 
istrative act  should  withdraw  the  problem  from  the 
control  of  the  ordinary  courts.  The  means  by  which 

3  [On  -the  council  of  state  and  its  organisation,  cf.  Hauriou, 
Precis  de  Droit  Administratif  (8th  ed.),  229f,  968f.  For  its  his- 
tory, cf.  Laferriere,  op.  cit.  i,  137-301.] 


136       LAW    IN    THE    MODERN    STATE 

this  result  was  to  be  attained  was  to  make  a  distinction 
between  different  administrative  acts. 

The  first  tendency  was  originally  expressed  in  an 
article  by  the  Due  de  Broglie  in  1828  (Revue  fran- 
gaise,  March,  1828).  From  that  time  till  1872  the 
suppression  of  administrative  courts  remained  an  es- 
sential article  in  the  liberal  program.  But  the  move- 
ment came  to  nothing.  Again  in  the  name  of  the 
great  commission  on  decentralisation  in  1872,  M.  Le- 
fevre  Pontalis  wrote  a  long  report  urging  the  sup- 
pression of  prefectoral  councils  and  the  transference 
of  their  functions  to  the  ordinary  courts ; 4  but  the 
National  Assembly  did  not  vote  upon  the  proposal 
and  the  Councils  still  exist.  By  the  act  of  May  24, 
1872,  the  Assembly  recognised  the  Council  of  State 
and  gave  it  full  judicial  control  with  the  widest  pow- 
ers. It  was  to  deal  as  a  sovereign  body  with  every 
case  in  which  the  administration  was  conceived. 

The  administrative  courts  were  thus  retained. 
The  movement,  indeed,  for  their  suppression  was 
bound, to  fail  for  many  reasons.  In  the  first  place, 
the  belief  that  the  administrative  act  is  clothed  with 
the  sovereignty  incarnate  in  the  executive  power  re- 
mained too  strong;  and  the  deduction  was  made  that 
the  executive  alone  could  thus  judge  the  validity  of 
its  orders.  To  give  such  power  to  the  courts  seemed 
a  flagrant  violation  of  the  separation  of  powers.  On 
the  other  hand,  in  men's  minds  there  unconsciously 

4  [This  is  still  a  great  problem.  Cf.  Jeze,  in  Bulletin  de  la 
Societe  d'Etudes  Legislatives,  1910,  p.  25.] 


ADMINISTRATIVE    ACTS  137 

penetrated  the  idea  of  public  service.  They  began 
to  see  the  intimate  bond  between  the  administrative 
act  and  the  response  to  public  needs.  They  had  a 
marked  repugnance  against  allowing  the  ordinary 
courts  to  concern  themselves  with  these  questions. 

Nevertheless  the  movement  towards  suppression 
has  had  considerable  result.  The  Act  of  1892  has 
not  only  made  the  Council  of  State  a  sovereign  juris- 
diction ;  but  the  learning  and  the  impartiality  of  its 
members  has  made  of  it  a  power  which  inspires  an 
unlimited  confidence. 

Alongside  this  legislative  evolution  legal  theory 
has  had  to  find  a  system  which,  harmonising  the  con- 
fused and  often  contradictory  decisions,  should  main- 
tain unbroken  the  principle  of  administrative  separa- 
tion, while  defining  and  limiting  its  extent. 

The  beginning  of  this  theoretical  construction  goes 
back  to  Merlin  and  Locre.  In  the  year  XII,  Merlin 
powerfully  protested  against  the  effort  under  the  Act 
of  Fructidor  16  of  the  year  III  to  take  from  the  ordi- 
nary courts  all  cases  derived  from  contracts.5  In 
his  work  on  French  Legislation  and  Jurisprudence 
(i8io),6  Locre  maintained  the  same  opinion.  In  the 
classic  works  of  Aucoc,  Ducrocq,  Batbie,  and  Da- 
reste,  a  clear  effort  is  made  to  distinguish  two  cate- 
gories of  administrative  action  of  which  one  only 
gives  rise  to  the  need  for  special  administrative 
courts. 

5  Questions  de  Droit,  V°  Pouvoir  Judiciare  (1829),  vi,  p.  306, 

6  At  p.  166, 


138       LAW    IN    THE    MODERN    STATE 

The  climax  of  this  doctrine  is  in  M.  Laferriere's 
work.  He  divides  administrative  acts  into  sovereign 
and  non-sovereign;  and  only  the  former  demand  in 
principle  the  special  administrative  courts.7  The 
mass  of  these  cases  form  what  is  termed  the  natural 
administrative  law.  On  the  other  hand,  non-sov- 
ereign administrative  acts  come  in  principle  within 
the  sphere  of  the  ordinary  courts.  They  should  be 
brought  before  the  administrative  courts  only  by  the 
expressed  provision  of  statute.  Such  cases  form  what 
is  called  statutory  administrative  law. 

The  understanding  of  this  is  essential  to  a  percep- 
tion of  the  direction  of  modern  political  theory.  The 
distinction  between  sovereign  and  non-sovereign  acts 
comes  from  the  desire  to  limit  the  judicial  power  of 
the  administration.  Viewed  from  this  standpoint,  it 
had  for  a  short  period  a  very  curious  history.  It  was 
urged  that  it  dominated  all  public  law  and  was  uni- 
versally applicable.  The  attempt  to  extend  it  re- 
vealed at  once  its  futility  and  the  real  character  of 
administrative  law. 


II 


It  is  not  sufficient  to  make  a  distinction  between  the 
two  divisions  of  administrative  acts;  it  is  necessary 
also  to  define  the  character  of  each  and  the  criterion 
by  which  they  may  be  distinguished.  This  was  no 
easy  task.  General  and  vague  formulas  it  was  of 

7  Jurisdiction  et  Contentieux  (1896). 


ADMINISTRATIVE    ACTS  139 

course  easy  to  find ;  but  a  precise  analysis  was  in  the 
highest  degree  difficult. 

M.  Laferriere  was  satisfied  with  a  very  general 
formula:  "A  double  task,"  he  says,8  "is  allotted  to 
administrative  authorities.  On  the  one  hand  they 
manage  the  public  funds,  collect  them  and  apply 
them  for  their  different  purposes.  In  the  fulfilment 
of  this  task  they  perform  what  is  called  non-sovereign 
acts;  on  the  other  hand,  the  administration  is  charged 
with  an  authority  which  is  one  of  the  attributes  of 
executive  power.  It  is  its  business  to  execute  the 
laws,  to  operate  the  public  services,  to  secure  for  citi- 
zens the  benefits  of  a  system  of  justice.  .  .  .  The  ad- 
ministration then  acts  in  an  authoritative  character, 
and  what  it  does  it  then  does  as  a  command,  as  an  act 
of  its  sovereign  power." 

Despite  the  vagueness  of  this  statement,  M.  Lafer- 
riere's  authority  was  too  great  for  it  not  to  be  ac- 
cepted with  unanimity.  It  was  affirmed  in  every 
book  and  there  was  no  law  school  that  did  not  teach 
it.  Yet,  as  a  formula  it  hardly  possessed  the  clear- 
ness and  precision  that  a  legal  principle  demands. 
This  defect  M.  Berthelemy  tried  to  remedy  in  his 
admirable  book  on  administrative  law.  He  postu- 
lates as  a  dogma  the  distinction  between  sovereign 
and  non-sovereign  acts.  A  practical  criterion  for 
distinguishing  between  them  he  describes  as  follows : 
"Non-sovereign  acts  are  acts  which  any  person  may 
do  in  the  administration  of  a  private  fortune  because 

8  Jurisdiction  et  Contentieux  (1896),  p.  6. 


140       LAW    IN    THE    MODERN    STATE 

they  do  not  imply  the  existence  of  sovereignty."  9 
Nothing  could  appear  more  helpful  or  more  precise. 

It  has  been  suggested  that  this  principle  enables  us 
to  solve  all  the  problems  of  public  law.  It  has  been 
held  to  contain  the  distinction  in  principle  between 
natural  and  statutory  administrative  acts.  Not  only 
is  it  urged  that  the  state  is  responsible  simply  for 
non-sovereign  acts  and  never  for  sovereign  acts,  save 
where  that  responsibility  has  been  established  by 
statute;  but  the  problems  connected  with  the  civil 
service  are,  so  we  are  told,  capable  of  solution  by  its 
means.  Civil  servants  who  perform  sovereign  func- 
tions are,  it  is  claimed,  appointed  by  unilateral  act  of 
the  state;  they  cannot  form  trade  unions  or  profes- 
sional associations;  they  cannot  strike.  Civil  serv- 
ants who  perform  non-sovereign  functions  are  in  the 
same  positions  as  private  agents.  Their  relationship 
to  the  administration  is  contractual.  They  can  go  on 
strike  and  they  can  form  trade  unions  in  so  far  as 
their  functions  enable  us  to  analogise  them  to  the  or- 
dinary workman. 

For  some  years  this  has  been  the  general  trend  of 
doctrine.  But  even  in  the  precise  form  that  M.  Ber- 
thelemy  gave  it  the  distinction  was  still  vague  enough. 
There  is  no  one  administrative  activity  that  some  time 
or  other  has  not  been  performed  by  a  private  citizen 
and  cannot  to-day  be  conceived  as  being  capable  of 
such  performance.  It  is  clear  that  the  Council  of 
State,  in  determining  the  capacity  of  administrative 

'Traite  Elementaire  de  Digit  Administratif  (7th  ed.),  p.  139. 


ADMINISTRATIVE    ACTS  141 

jurisdiction,  pays  no  regard  to  the  distinction  between 
sovereign  and  non-sovereign  acts.  Nor  is  it  less  clear 
that  the  responsibility  of  the  state  is  involved  when  a 
private  citizen  suffers  from  the  act  of  such  a  service 
as  that  of  police  which,  if  the  distinction  be  accurate, 
would  obviously  be  sovereign  in  character.  Finally, 
and  above  all,  the  syndicalist  movement  in  the  Civil 
Service  has  shown  clearly  that  the  proposed  dis- 
tinction would  lead  to  impossible  consequences.  It 
would  involve  the  recognition  of  the  right  to  form  a 
union  with  the  implication  of  adherence  to  the  C.  G. 
T.,  for  almost  all  the  Civil  Service  and  the  admission 
that  they  may  go  on  strike.  But  this  is  in  complete 
contradiction  with  the  very  idea  of  service  and  public 
duty.10 

These  facts  speak  for  themselves.  M.  Berthelemy 
alone  has  remained  faithful  to  a  distinction  which  it 
is  impossible  to  maintain.  In  his  very  able  argument 
in  the  Feutry  case,  M.  Teissier,  as  counsel  for  the 
government,  demonstrated  conclusively  its  impossi- 
bility. "This  distinction,"  he  said,  "has  no  legal  ba- 
sis and  at  no  point  corresponds  to  the  facts  at  issue. 
The  truth  is  that  every  state  act  performed  to  assure 
the  operation  of  public  services  involves  the  applica- 
tion of  statutes  and  administrative  ordinances.  .  .  . 
We  may  therefore  say  that  neither  the  state  nor  its 
officials  ever  act  in  the  same  situation  as  a  private  citi- 

10  [See,  on  the  other  side,  J.  Paul-Boncour,  Syndicats  de  Fonc- 
tionnaires  (1906);  M.  Leroy,  Syndicats  et  Services  Publics, 
1909.] 


142       LAW    IN    THE    MODERN    STATE 

zen."  This  ably  puts  the  essential  point.  Adminis- 
trative intervention  must  always  differ  from  private 
action  because  the  end  it  has  in  view  is  different.  It 
aims  simply  at  the  legal  response  to  public  need. 


Ill 


That  is  not,  however,  to  say  that  the  government 
always  intervenes  in  the  same  way.  Its  action  varies 
according  to  the  circumstances  of  the  case,  even  while 
the  principle  involved  is  constant.  This  is  demon- 
strated by  the  consequences  of  its  action. 

Sometimes  administrative  acts  result  in  a  subjective 
legal  situation  where  the  government  or  the  private 
citizen  undertakes  a  definite  obligation.  We  have 
then  a  declaration  of  will  from  a  public  official  the 
object  of  which  is  to  create  for  the  purposes  of  a  pub- 
lic service  a  subjective  legal  situation.  Such  a  situa- 
tion is  the  synthesis  of  the  general  elements  of  a  legal 
act.  We  have  first  a  declaration  of  will :  necessarily, 
that  declaration  must  conform  to  the  objective  law, 
and  since  the  day  we  may  always  equate  objective  law 
with  legislation,  it  may  be  said  that  the  announce- 
ment of  official  purpose  must  base  itself  upon  statute. 
Some  acts  are  by  their  nature  beyond  official  power. 
On  the  other  hand,  the  official  is  legally  limited  to  a 
definite  field  and  within  this  field  to  definite  pur- 
poses. This  is  called  his  capacity.  Any  purpose 
outside  his  capacity  is  ultra  vires. 

The  second  essential  element  in  every  legal  act,  es- 


ADMINISTRATIVE    ACTS  143 

pecially  in  every  administrative  act  of  a  legal  kind,  is 
the  end  it  has  in  view.  This  element  is  coming  more 
and  more  to  be  of  decisive  importance.  For  an  offi- 
cial act  to  be  legal  it  is  essential  it  should  have  in  view 
a  socially  valuable  aim  in  accord  with  the  objective 
law  of  the  country  in  question.  Metaphysical  consid- 
erations apart,  every  act  of  will  has  a  motive  behind 
it  and  the  value  of  every  administrative  act  is  the  ob- 
ject it  has  in  view,  which  can  only  be  a  regard  for  the 
public  service.  Any  other  motive  involves  an  abuse 
of  power;  if  the  motive  is  good,  but  beyond  the  ca- 
pacity of  the  agent,  there  is  a  misuse  of  power. 

Abuse  and  misuse  of  power  are  two  legal  theories 
directly  connected  with  the  idea  of  the  end  of  law 
which  are  becoming  daily  of  increasing  importance.11 
In  private  law  the  change  is  precisely  similar.12  For 
a  long  time  the  Civilians  considered  only  the  result 
of  an  act  of  will.  It  is  of  course  true  that  in  the  Code 
Napoleon  (Articles  1131-1133),  will  was  placed 
under  the  title  of  Cause ;  but  the  highest  authorities 
agree  that  cause  in  fact  plays  no  part  in  the  birth  of 
an  obligation.  We  have  now  a  whole  line  of  cases 
which,  to  the  great  astonishment  of  the  classic  author- 
ities, make  the  element  of  purpose  and  its  social  value 
of  the  first  importance. 

The  fundamental  thing  is  not  the  character  of  the 
agent  who  acts,  it  is  not  the  result  that  he  achieves,  but 

11  [C/.  Prof.  Dicey 's  comment,  Law  of  the  Constitution  (8th 
ed.),p.  394f.] 

12  Cf.  Duguit,  Les  Transformations  Generates  du  Droit  Prive 
(1912),  p.  52seq. 


144       LAW    IN    THE    MODERN    STATE 

the  purpose  that  determines  his  act.  If  an  adminis- 
trative act  produces  certain  special  effects,  it  is  not 
because  it  is  derived  from  a  special  will  with  special 
powers.  As  a  matter  of  sober  fact,  it  is  derived  from 
a  will  no  stronger  than  any  other  will ;  but  the  end 
it  has  in  view  gives  it  a  heightened  force  in  value. 

This  end  must  be  public  in  character.  If  in  public 
law  a  legal  result  is  often  produced  by  a  similar  act 
of  unilateral  will,  it  is  because  the  declared  purpose 
of  the  agent,  who  is  simply  an  individual  like  any 
other  and  has  no  special  superiority  in  himself,  is  de- 
termined by  the  end  he  has  in  view — the  public  serv- 
ice. A  unilateral  administrative  act  has  been  called 
sovereign  in  character,  because,  in  accord  with  the 
current  imperialist  and  individualist  theory,  it  was 
not  imagined  that  the  legal  situation  could  be  created 
without  a  contract,  or  at  least  that  a  will  more  power- 
ful than  other  wills  could  create  by  its  own  force  a 
legal  result. 

If  many  administrative  acts  are  unilateral,  many 
are  also  contractual.  When  an  official  and  a  private 
citizen  agree,  the  contractual  declaration  is  the  basis 
of  the  administrative  act.  Acute  search  has  not  dis- 
covered a  criterion  by  which  to  say  when  the  admin- 
istration can  act  unilaterally  and  when  in  contractual 
fashion.  Every  situation  needs  its  separate  analysis, 
and  all  that  can  be  said  is  that  the  tendency  of  public 
and  private  law  to-day  is  the  diminution  of  the  sphere 
of  contract  and  its  replacement  by  unilateral  activity. 
This  tendency  is  connected  with  what  I  have  called 


ADMINISTRATIVE    ACTS  145 

the  socialisation  of  law  on  the  one  hand  and  the  grow- 
ing importance  of  the  purpose  of  law  on  the  other. 
The  two  movements  are  essentially  connected. 

Since  the  act  of  an  official  derives  its  force  and  its 
consequence  from  the  public  end  it  is  to  serve,  it  may 
be  asked  why  it  is  necessary  to  inquire  when  the  de- 
termination is  unilateral  or  contractual.  It  derives 
its  nature  from  the  end  it  serves.  This  in  itself  shows 
how  administration  has  become  subject  to  law;  it 
shows  also  in  what  fashion  the  theory  of  the  state  is 
changing.  That  is  why  the  border  line  between  pub- 
lic and  private  law  is  becoming,  more  and  more  per- 
haps, the  fundamental  aspect  of  modern  law.  It  of 
course  appears  under  different  aspects  as  the  act  from 
which  it  arises  is  different.  But  every  administrative 
act  has  one  common  character:  the  question  raised 
by  every  administrative  case  is  the  question  of  know- 
ing whether  the  act  had  in  view  a  public  need  and 
conformed  to  the  organic  law  by  which  the  service 
corresponding  to  that  need  was  operated. 

This  explains  the  disappearance  of  the  traditional 
theory  that  the  administration  cannot  be  bound  by  its 
unilateral  acts.  This  was  simply  a  deduction  from 
the  supposed  sovereignty  by  which  the  unilateral  acts 
of  the  administration  were  distinguished.  But,  as 
soon  as  it  is,  on  the  contrary,  seen  that  an  administra- 
tive act  is  a  legal  act,  and  creates  a  legal  situation,  it 
is  clear  that  whether  contractual  or  unilateral  it  is 
beyond  the  reach  of  the  administration  either  to  sup- 
press it  or  to  modify  it.  When  the  administration. 


146       LAW    IN    THE    MODERN    STATE 

repeals  or  changes  an  act  it  is. simply  because  this  act 
has  created  no  obligation;  or  at  least  an  obligation 
that  permits  of  revocation. 

Here  again,  were  there  need  of  it,  we  could  infer 
the  elimination  of  sovereignty.  The  Council  of  State 
has  several  times  applied  this  theory  and  its  decisions 
have  gone  without  criticism.  M.  Jeze  has  summa- 
rised decisions  of  three  cases  dating  from  1910  and 
1911  as  follows:  "Where  a  legal  act  has  been  com- 
pleted in  accordance  with  law,  it  cannot  be  revoked 
in  the  sense  of  being  considered  as  not  having  oc- 
curred, and  being  without  result.  All  that  can  be 
done  is  to  perform  other  legal  acts  with  the  purpose 
of  putting  an  end  to  the  legal  situations  created  by 
the  first  .  .  .  nor  is  this  always  possible.  It  may 
happen  that  the  legal  act  it  is  desired  to  recall  has 
created  so  special  a  situation  that  it  does  not  admit  of 
change;  in  which  event  any  later  act  is  useless."  13 

IVi 

The  character  of  administrative  acts  based  on  the 
concept  of  purpose,  and  the  elimination  of  the  idea  of 
sovereignty,  together  explain  why  the  question  as  to 
the  obligatory  character  of  the  contracts  made  by  the 
state  with  its  citizens  is  no  longer  necessary.  It  is 
easy  enough  to  understand  the  difficulty  that  con- 
fronts the  imperialist  system.  If  the  state,  it  may  be 
said,  is  by  definition  a  sovereign  person,  it  preserves 

ls Revue  de  Droit  Public  (1911),  p.  61. 


ADMINISTRATIVE    ACTS  147 

this  character  in  all  its  acts  whether  contractual  or 
unilateral.  As  a  result,  the  state  cannot  be  bound 
by  contract  because,  when  it  is  so  bound,  its  per- 
sonality would  be  no  longer  supreme;  it  would  then 
cease  to  be  sovereign,  since  the  nature  of  sovereignty 
is  to  be  without  subordination  to  any  will  what- 
ever. 

In  the  imperialist  system  an  elaborate  hierarchy 
of  theories  has  been  constructed  to  justify  the  attribu- 
tion of  an  obligatory  character  to  the  contracts  of  the 
state.  Individualism,  of  course,  can  explain  it  suffi- 
ciently well  by  saying  that  sovereignty  is  always  lim- 
ited by  the  natural  rights  of  the  individual.  The 
state  therefore  can  only  proceed  by  way  of  its  con- 
tract when  it  encroaches  on  the  realm  reserved  for 
individual  rights. 

In  Germany,  the  theory  of  the  state  as  a  fiscal 
person,  ably  defended  in  France  by  M.  Ducrocq,  has 
had  much  vogue.  It  insists  that  the  state  has  two 
personalities,  one  sovereign,  and  the  other  financial, 
the  second  being  created  by  the  sovereign  act  of  the 
first.  In  this  conception  it  is  the  state  as  a  financial 
person  alone  which  can  be  a  party  to  a  contract;  be- 
ing non-sovereign,  it  has  the  attributes  of  a  private 
citizen.14  This  theory  of  a  double  personality  has 
been  keenly  criticised  by  French  and  German  jurists, 

"Hatschek,  Die  rechtliche  Stellung  des  Fiscus  (1899);  Du- 
crocq, Droit  Administratif  (7th  ed.),  iv,  p.  11  seq.  [Cf.  the  way 
in  which,  in  England,  the  crown  can  be  sued  on  contracts,  but  not 
for  the  torts  of  its  agents.  Dicey,  Law  of  the  Constitution  (8th 
ed.),  p.  556,  and  Laski,  Harv.  L.  Rev.,  March,  1919.] 


148       LAW    IN    THE    MODERN    STATE 

notably  by  Jellinek  and  Michoud.15  The  latter  has 
given  to  this  doctrine  of  personality  a  twofold  impli- 
cation. Sometimes  the  state  appears  as  sovereign ;  it 
then  commands;  sometimes  it  appears  as  a  private 
person,  it  then  contracts.  It  remained  for  M. 
Ihering  to  invent,  and  M.  Jellinek  to  develop,  the 
ingenious  theory  of  auto-limitation.16  The  charac- 
ter of  a  sovereign  will  is  to  be  completely  self-deter- 
mining. When  the  state  contracts  it  consents,  by  an 
effort  of  its  own  will,  to  limit  itself.  But  that  will, 
even  in  so  limiting  itself,  by  being  thus  completely 
self-determining,  remains  sovereign  even  when  it 
submits  to  contract. 

The  mere  statement  of  these  theories  is  the  evi- 
dence of  their  futility.  No  one  can  deny  that  the 
state  is  bound  by  contract,  and  this  unanimity  is  evi- 
dence that  the  concept  of  sovereignty  is  in  process  of 
disappearance.  No  organ  of  the  state,  nor  even  the 
legislative  body  can  overthrow  its  contracts.  An  act 
by  which  the  contractual  obligation  of  the  state  was 
suppressed  or  modified  would  be  ultra  vires;  and  the 
courts  would  condemn  the  state  exactly  as  if  the  act 
had  not  been  made.  The  old  conception  of  contracts 
of  public  law  by  which  the  state  was  authorised  to 
withdraw  from  its  obligations  has  had  its  day.17  A 
contract  is  a  legal  act  with  the  same  character  both 

15  System  der  Offentliche  Subjektiven  Rechte  (1905),  p.  209; 
Michaud,  De  la  Personnalite  Morale,  I,  262. 

16Allgemeine  Staatslehre  (1905),  p.  357. 

17  [It  is  of  interest  to  compare  American  experience  on  this 
head.  Fletcher  v.  Peck,  6  Cranch,  135.] 


ADMINISTRATIVE    ACTS  149 

in  public  and  in  private  law;  or  rather  no  distinction 
exists  between  public  and  private  law  and  the  state 
is  bound  by  its  contracts  exactly  as  a  private  citizen 
is  bound.  It  has  been  noticed  that  in  condemning 
the  state,  even  when  legislative  acts  try  to  free  it  from 
its  obligations,  the  courts  do  not  pass  upon  the  ques- 
tion of  the  responsibility  that  derives  from  an  act  of 
parliament.  What  they  do  is  to  pass  upon  a  contract 
and  on  the  extent  of  an  obligation  which  the  parlia- 
ment cannot  suppress. 

The  Council  of  State  gave  in  1896  and  1904  two 
typical  decisions  on  this  question.  By  an  agreement 
made  in  1860  between  the  French  government  and 
certain  ecclesiastical  foundations  of  Savoy,  the  latter 
handed  over  certain  rent  charges  to  France  which,  in 
return,  under  the  form  of  pension,  was  to  give  them 
the  equivalent  of  the  arrears.  In  1883  the  French 
chamber  refused  to  vote  the  necessary  credits  for  the 
payment  of  the  debt.  The  Minister  of  Finance  was 
thus  unable  to  authorise  the  outlay.  The  Council  of 
State  by  its  first  decision  of  1896  annulled  the  minis- 
terial order  and  enjoined  the  Minister  to  liquidate  his 
obligation — that  is  to  say,  despite  Parliamentary  de- 
cision to  the  contrary,  the  French  state  was  ordered  to 
pay  its  legally  contracted  debt.18  In  the  debate  of 
December  22,  1899,  M.  Caillaux,  then  Minister  of 
Finance,  asked  for  a  vote  of  credit  to  comply  with 
this  decision.  He  clearly  affirmed  that  the  contracts 
of  the  state,  despite  any  contrary  decision  of  parlia- 

18Recueil,  1896,  p.  660. 


LAW    IN    THE    MODERN    STATE 

ment,  gave  rise  to  an  obligation.  This  decision  was 
upheld  in  1904  under  similar  circumstances.19  The 
clear  protest  of  M.  Millerand,  the  Minister  of  Public 
Works,  in  the  Chamber  against  the  proposal  of  M. 
Jaures  to  pass  an  act  which  would  have  freed  the 
state  from  certain  obligations  to  the  Western  Rail- 
way Co.,  is,  of  course,  well  known. 


So  far  the  unilateral  or  contractual  activities  of  the 
administration  have  in  this  discussion  been  of  a  legal 
kind.  In  its  largest  sense  the  term  administrative 
act  comprises  also  the  whole  series  of  operations 
which  are  incontestably  administrative  in  their  na- 
ture. They  are  not,  however,  legal  in  character  and 
may  therefore  be  called  material  administrative  acts. 
The  term  is  applied  to  the  innumerable  activities  of 
state  officials  to  assure  the  operation  of  public  serv- 
ices and  particularly  those  we  have  called  the  indus- 
trial services  like  transportation  and  the  telephone 
system.  The  number  and  the  complexity  of  such 
acts  is  growing  with  the  increasing  complexity  of  the 
state.  They  are  not  legal  acts  because  they  are  not 
performed  to  create  of  themselves  a  legal  situation; 
but  since  they  have  in  view  a  public  end  they  fall 
under  the  domain  of  law.  Often  indeed  they  are  the 
preparation  for  a  legal  administrative  act;  they  con- 
stitute the  formal  conditions  by  which  such  an  act 

19Recueil,  1904,  p.  533. 


ADMINISTRATIVE    A  C  T  $>  151 

becomes  valid  and  thus  make  part  of  it.  Often  again 
they  are  the  execution  of  such  an  act  and  thus  di- 
rectly related  to  it.  Even  when  they  are  neither  its 
completion  nor  its  preparation  they  are  not  now  legal, 
because  they  may  involve  responsibility  on  the  part 
of  the  administration  or  the  civil  service  to  private 
citizens. 

This  analysis,  if  somewhat  arid,  is  nevertheless  nec- 
essary. What  it  shows  is  that  if  administrative  acts 
have  different  aspects  according  to  the  conditions 
under  which  they  arise,  they  have  two  characteristics 
in  common  of  which  one  is  negative  and  the  other 
positive.  No  administrative  act  is  derived  from 
a  sovereign  will.  All  administrative  acts  are  per- 
formed by  a  government  official  with  a  view  to  se- 
curing the  operation  of  a  public  service  and  must  be 
made  conformably  with  its  statutory  organisation. 

In  such  an  aspect,  every  element  of  public  law  has 
its  connected  place  in  the  whole  system.  A  statute  is 
a  general  regulation  which  creates,  organises  and 
operates  some  public  service.  'An  administrative  act 
is  the  individual  and  concrete  act  necessary  to  the 
operation  of  the  service  and  performed  in  agreement 
with  statute^  Every  administrative  process,  there- 
fore, gives  rise  to  the  question  as  to  whether  it  con- 
forms to  the  law  of  the  service  concerned. 


VI 

If  this  is  true,  the  consequence  from  the  point  of 
view  of  administrative  law  is  clear.    An  administra- 


152       LAW    IN    THE    MODERN    STATE 

tive  case  deals  with  any  question  relative  to  govern- 
mental operations.  Every  case  of  this  kind  comes 
within  the  jurisdiction  of  the  administrative  courts 
and  the  nature  of  the  act  concerned  is  immaterial. 

The  evolution  of  administrative  law  is  entirely 
antithetic  to  what  the  second  half  of  the  nineteenth 
century  seemed  to  expect  and  to  what  M.  Laferriere 
in  1887  and  1896  predicted.  In  the  imperialistic 
theory,  sovereignty  appeared  in  every  administrative 
act;  and  for  that  reason  the  law  of  Fructidor  (year 
III)  deprived  the  courts  of  all  such  jurisdiction.  It 
then  became  necessary  to  distinguish  between  acts 
clothed  and  unclothed  with  sovereignty.  That  was 
clearly  impossible ;  and  it  became  apparent  that  the 
common  character  of  administrative  acts  came  from 
their  similar  destination  to  a  public  service.  It  then 
became  necessary,  from  the  point  of  view  of  adminis- 
trative law,  to  treat  them  as  identical  and  to  with- 
draw all  alike  from  the  jurisdiction  of  the  courts;  so 
there  was  a  logical  return  to  the  system  of  the  year 
III.  But  it  was  at  this  time  that  there  was  estab- 
lished a  general  administrative  competence  by  reason 
of  the  sovereignty  implied  in  every  governmental  act, 
just  as  to-day  it  has  been  established  by  reason  of  the 
purposes  those  acts  must  serve. 

It  would  be  to  neglect  an  important  fact  not  to  add 
that  this  evolution  has  been  hastened,  on  the  one  hand 
by  the  ignorance  and  inertia  of  the  ordinary  courts, 
and  on  the  other  by  the  independence,  the  learning, 
and  the  fine  impartiality  of  the  Council  of  State. 


ADMINISTRATIVE    ACTS  153 

Many  of  the  ordinary  courts  still  stand  where  Roman 
law  and  Pothier  stood.  It  is  of  course  true  that  some 
of  the  courts  hand  down  decisions  that  are  making  a 
new  civil  law  alongside  the  new  public  law;  but  this 
is  either  due  to  the  presence  on  the  bench  of  a  few 
great  judges  or  to  the  unconscious  need  of  circum- 
stances stronger  than  the  courts.  It  is  indubitable 
that  even  the  highest  tribunals  are  still  impressed  by 
the  superstitious  fear  that  administration  inspires  in 
a  Frenchman  and  that  many  are  too  prone  to  con- 
sider an  administrative  act  as  a  sacred  thing.  It  is 
not  then  astonishing  that  private  citizens  should  have 
little  confidence  in  the  ordinary  courts  where  their 
case  directly  or  even  remotely  concerns  itself  with  an 
administrative  problem;  and  it  was  obvious  enough 
that  their  hopes  would  be  built  on  the  Council  of 
State  which,  in  every  circumstance,  has  found  means, 
more  even  than  in  the  Court  of  Cassation,  to  protect  ' 
the  individual  against  the  arbitrary  character  of  ad- 
ministrative power. 

Every  question  of  jurisdiction,  therefore,  comes 
down  to  this :  Is  the  administration  involved,  or  is  It 
not,  when  an  act  is  related  to  the  operations  of  gov- 
ernment? If  it  is,  the  jurisdiction  belongs  to  the  ad- 
ministrative courts,  if  it  is  not,  it  belongs  to  the  ordi- 
nary courts. 

It  is  perhaps  worth  while  to  cite  some  of  the  cases 
which  mark  the  principal  stages  in  this  evolution. 
In  1903  the  Council  considered  a  case  which  arose 
out  of  a  meeting  of  a  general  council,  which  was 


154       LAW    IN    THE    MODERN    STATE 

doubtless  a  unilateral  act,  but  to  which  no  sovereign 
character  belonged.  The  Council  had  offered  a  re- 
ward for  the  destruction  of  vipers.20  One  Terrier 
brought  so  many  vipers7  heads  that  he  used  up  and 
went  beyond  the  actual  sum  allotted  to  the  depart- 
ment for  the  purpose.  The  prefect  refused  to  pay 
him  his  due,  and  Terrier  therefore  sued  the  depart- 
ment before  the  Council  of  State.  The  latter  ac- 
cepted the  plea  on  the  ground  that  the  general  coun- 
cil had  organized  what  was  virtually  a  public  utility, 
which  the  representative  of  the  government  com- 
pared to  the  wolf-destruction  of  other  departments. 
He  acted  therefore  in  a  case  where  the  operation  of  a 
public  service  was  concerned ;  and  as  a  consequence 
the  Council  was  competent  to  take  cognizance  of  the 
matter. 

The  Council  of  State  has  -always  admitted  its  ad- 
ministrative jurisdiction  for  cases  arising  out  of  state 
contracts.  It  used,  however,  to  be  said  that  where 
the  case  was  concerned  with  the  local  authority,  juris- 
diction belonged  to  the  ordinary  courts.  To-day  the 
Council  of  State  claims  jurisdiction  over  every  case, 
local  or  national,  where  a  public  contract  is  con- 
cerned. This  was  clearly  settled  in  the  Theroud  case 
in  1910,  where  the  town  of  Montpelier  made  an 
agreement  for  the  removal  of  dead  animals.21  It  was 
held  that,  since  the  agreement  had  in  view  the  sani- 

20Recueil,  1903,  p.  94;  Sirey,  1903,  iii,  25. 
21Recueil,  1910,  p.  193;  Sirey,  III,   1911,  p.   17;  Revue  de 
Droit  Public,  1910,  p.  353. 


ADMINISTRATIVE    ACTS 

tary  security  of  the  population,  it  was  a  general  gov- 
ernmental act,  and  in  default  of  a  precise  text  hand- 
ing it  over  to  any  other  court,  jurisdiction  belonged 
to  the  council  of  state. 

So  far  as  the  venue  of  simple  administrative  mate- 
rial acts  is  concerned,  there  must  always  be  a  doubt 
as  to  responsibility.  Evolution  here  is  even  more 
characteristic  than  in  the  case  discussed.  The  first 
Court  of  Conflicts,  instituted  by  the  Constitution  of 
1848,  had  settled  that  the  administrative  courts  alone 
had  jurisdiction  to  deal  with  the  damages  that  might 
result  from  governmental  action.  It  cited  the  Acts 
of  July  17,  1791,  and  September  26,  1793,  which  set- 
tled that  the  government  alone  could  make  the  state 
a  debtor.  As  a  fact,  these  acts  had  no  relation  to  the 
question  of  venue;  their  purpose  was  simply  the 
liquidation  of  state  debts  without  recourse  to  law. 
The  real  motive  of  the  decision  was  not  admitted.  A 
beginning  was  made,  not  without  hesitation,  of  ad- 
mitting that  the  state  was  responsible  for  acts  arising 
out  of  the  performance  of  its  functions  even  while 
there  was  a  dim  feeling  that  this  responsibility  vio- 
lated the  hitherto  undoubted  theory  of  sovereignty. 
It  was  for  this  reason  that  it  had  been  desired  to  keep 
exclusive  jurisdiction  for  the  administrative  author- 
ities; nevertheless,  under  the  Second  Empire  the 
Court  of  Cassation  several  times  admitted  the  com- 
petence of  the  ordinary  courts.  The  question  came 
before  the  Court  of  Conflicts  which  had  just  been 
created  by  the  law  of  May  24,  1872.  Damages  had 


156       LAW    IN    THE    MODERN    STATE 

been  claimed  against  the  state  as  the  result  of  an  acci- 
dent to  a  child  in  the  tobacco  factory  of  Bordeaux. 
In  a  decision  handed  down,  after  disagreement,  under 
the  presidency  of  M.  Dufaure,  the  Minister  of  Jus- 
tice, the  Court  of  Conflicts  decided  that  the  case  was 
administrative  in  nature.22  But  the  decision  no 
longer  cited  the  laws  of  1790  and  1793.  I*  appealed 
vaguely  to  the  general  principle  of  separation  of  pow- 
ers. It  declared  that  "state  responsibility  for  private 
damage  caused  by  officials  can  be  governed,  not  by 
principles  of  the  Criminal  Code,  since  the  responsi- 
bility is  neither  general  nor  absolute,  but  by  special 
rules  which  vary  with  the  need  of  government  and 
the  necessity  of  harmonising  state  rights  and  private 
rights." 

Vague  and  unscientific  as  these  motives  may  be, 
they  are  interesting  because  of  the  evolution  they 
presage.  The  Court  clearly  felt  the  growing  sense 
that  the  state  must  be  made  responsible  for  its  acts 
even  while  its  responsibility  was  different  from  that 
of  the  citizen  in  his  private  relations.  It  did  not  yet 
formulate,  of  course,  the  distinction  between  the  sub- 
jective responsibility  for  fault  and  the  objective  re- 
sponsibility for  risk.  The  definition  of  this  twofold 
notion  came  later.  But  the  courts  in  1873  realised 
that  state  responsibility  cannot  be  a  responsibility  for 
fault  and  that  the  ordinary  courts  lacked  jurisdiction 
simply  because  it  is  with  this  responsibility  that  they 

22Sirey,  1873,  II,  153, 


ADMINISTRATIVE    ACTS  157 

deal.  So  it  should  be  when  the  problem  is  that  of  a 
service  to  which  sovereignty  is  not  attached.  The 
decision  is  fundamental.  It  tends  to  rescue  for  the 
governmental  courts  all  cases  which  concern  govern- 
mental functions;  and  this,  whatever  the  character  of 
the  act  or  the  department  in  which  it  arises. 

The  Blanco  case  is  thus  the  point  of  departure  of 
a  whole  evolution.  The  ordinary  courts  accepted  it 
and  refused  to  deal  with  cases  where  the  responsibil- 
ity of  the  state  was  concerned  unless  some  definite 
statute  gave  them  jurisdiction.  Logic  completed 
what  chance  had  begun.  Suits  against  communes, 
departments,  public  offices  for  responsibility  arising 
from  their  service,  came  before  the  Council  of  State 
in  the  first  hearing  in  the  final  decision.  There  was 
much  hesitation;  even  in  1906  the  Court  of  Conflicts 
decided  that  the  rules  applicable  to  the  responsibility 
of  the  state  are  different  from  those  applicable  to  the 
communes.  Logic,  however,  was  successful.  The 
idea  of  public  service  has  become  the  fundamental 
basis  of  public  law.  However  administered,  every 
such  service  has  the  same  essential  character,  and 
there  is  thus  no  reason  to  make  any  distinction  of 
jurisdiction. 

That  is  why  on  February  29,  1908,  the  Court  of 
Conflicts  recognised  that  it  could  receive  a  plea 
against  the  department.  The  Feutry  case,  based  on 
the  remarkable  conclusions  of  M.  Teissier,  as  gov- 
ernment counsel,  completes  the  evolution  that  the 


158       LAW    IN    THE    MODERN    STATE 

Blanco  case  had  begun.23  Action  was  brought  against 
the  department  of  the  Oise  on  the  ground  that  it  was 
responsible  for  the  arson  of  a  lunatic  who  had  escaped 
from  the  departmental  asylum  of  Clermont.  The 
Court  of  Conflicts,  after  disagreement,  decided,  un- 
der the  presidency  of  M.  Briand  as  Minister  of  Jus- 
tice, in  favour  of  administrative  jurisdiction  "on  the 
ground  that  the  claim  attacks  the  organisation  and 
functioning  of  a  service  maintained  at  public  cost  the 
appreciation  of  the  faults  of  which  cannot  belong  to 
the  ordinary  courts." 

The  simple  and  sufficient  reason  for  deciding  that 
the  case  was  administrative  in  nature  was  the  fact 
that  it  dealt  with  the  operation  of  a  public  service. 
The  same  answer  must  obviously  be  givisn  where  the 
public  authority  is  local  and  not  national;  and  this 
has  been  the  effect  of  numerous  decisions  since  1908 
of  every  kind  of  court.24 


VII 


The  business  of  administration  is  thus  the  manage- 
ment of  the  business  of  the  state  in  conformity  with 
the  law.  Just  as  sovereignty  has  been  eliminated 
from  the  sphere  of  legislation,  so  has  it  passed  from 
the  sphere  of  administration.  The  administration  of 

23Recueil,  1908,  p.  208;  Sirey,  1908,  III,  98;  Revue  de  Droit 
Public,  1908,  p.  266. 

24  Cf.  also  the  Fonscolombe  case,  1908;  Recueil,  p.  449.  See 
further  Revue  Generale  d'Administration,  1910,  III,  194;  Sirey, 
1911,  II,  p.  281. 


ADMINISTRATIVE    ACTS  159 

the  state  is  conducted  under  the  control  of  adminis- 
trative courts  composed  of  administrative  magis- 
trates. Cognisant  of  the  conditions  under  which  it 
is  necessary  to  operate  the  state,  they  afford  the  nec- 
essary guarantees  of  independence  and  impartiality. 
They  reconcile  the  interests  of  the  state  with  those  of 
private  citizens.  In  this  way  all  administration  is  a 
matter  of  law  and  controlled  by  the  courts.  It  is  in 
this  service,  above  all,  that  the  modern  state  becomes 
what  the  Germans  call  the  Rechstaat. 

While  this  evolution  is  practically  true  of  France, 
it  is  not  confined  to  it.  The  movement  can  be  paral- 
leled in  Germany  and  in  Austria,  and  it  is  perhaps 
worth  while  to  outline  the  general  character  of  this 
development.  In  Germany  its  character  has  been 
clearly  outlined  by  Professor  Mayer.  "The  final  re- 
sult," he  writes,25  "is  to  identify  administrative  justice 
with  jurisdiction  in  the  strict  sense  of  the  word — that 
is  to  say,  the  declaration  of  the  law  in  its  individual 
sense."  "Our  starting  point,"  he  writes  again,  "is 
those  cases  in  French  law  where  the  plea  of  ultra  vires 
has  been  made.  This  has  had  some  influence,  even 
though  it  has  been  hardly  understood,  on  the  develop- 
ment of  German  law.  It  is  derived,  like  the  plea  to 
the  Court  of  Cassation,  from  the  ancien  regime.  Its 
value  has  been  proved  by  a  long  history  and  it  has 
been  brought  to  a  high  stage  of  perfection.  ...  In 
place  of  this  plea,  German  law  provides  the  demand 
for  nullification  where  the  law  is  violated."  Mayer 

25  Droit  Administratif  Allemand,  I,  210,  247. 


160       LAW    IN    THE    MODERN    STATE 

then  explains  that  German  jurisprudence  has  not  yet 
arrived  at  the  point  where  authority  could  be  nega- 
tived— a  doctrine  which,  as  the  next  chapter  will 
show,  occupies  an  important  place  in  French  law. 
The  different  jurisprudence  of  the  United  States  and 
of  England  has  made  their  evolution  different.  Yet 
they  enter  also  with  the  general  current  of  modern 
law.  They  tend  to  organise  the  judicial  control  of 
administrative  activity.  French  influence  is  appar- 
ent in  this  evolution  even  though  it  is  only  at  its  be- 
ginning. Such  control,  however,  is  as  yet  extremely 
narrow.  It  has  also  been  pointed  out  to  us  that  in 
England  and  America  every  administrative  act  is 
subject  to  the  control  of  the  ordinary  courts  and  this 
system  has  been  urged  upon  France.  This  is  a  mis- 
statement  of  the  issue.  In  reality  so-called  cases 
against  the  administration  in  England  and  America 
are  simply  cases  against  the  individual  administra- 
tions, and  as  Hauriou  justly  observes,  "the  defect  is 
the  absence  of  the  two  great  methods  of  French  ad- 
ministrative law:  the  annulment  of  administrative 
acts  on  the  one  hand  and  the  claim  of  damages  from 
a  corporate  administrative  person  on  the  other." 
To-day  these  methods  begin  to  find  their  place  in  the 
common  law.  Special  tribunals  are  being  organ- 
ised, or  rather  the  ordinary  courts  are  being  given 
special  powers,  to  deal  with  governmental  cases, 
either  where  responsibility  is  concerned,  or  where  the 
26  Precis  de  Droit  Administratif  (1911),  p.  935,  n.  1. 


ADMINISTRATIVE    ACTS  161 

legality  of  the  administrative  acts  is  called  into 
question. 

In  England  the  ordinances  of  the  central  govern- 
ment can  always  be  nullified  by  the  courts  as  ultra 
vires  when  they  go  beyond  the  legislative  delegation 
from  which  they  are  derived.  The  same  is  true  of 
local  regulations.  Recent  legislation  has  sometimes 
given  to  administrative  bodies  a  real  jurisdiction  for 
particular  objects.  This  is  the  beginning  of  an  ad- 
ministrative law  and  the  evolution  will  be  rapid.27 
In  the  United  States  the  development  has  gone  fur- 
ther. A  statute  of  1855  established  a  court  to  deal 
with  all  claims  based  either  on  law  or  contract  made 
against  the  central  government.  At  first  the  deci- 
sions of  this  court  had  not  the  force  of  law.  They 
were  simply  the  basis  of  bills  which  Congress  had  to 
approve.  Later  the  Court  of  Claims  became  a  real 
court,  the  decisions  of  which  became  binding  upon 
the  Secretary  of  the  Treasury;  and  appeal  from  its 
decisions  went  to  the  Supreme  Court. 

A  complicated  system  of  writs  enables  the  Ameri- 
can courts  to  annul  the  administrative  decisions,  but 
they  lack  the  power  to  examine  questions  of  fact  or 
timeliness  already  determined  in  those  writs  by  the 
administrative  authority.  "The  principle  applies 
whatever  be  the  rank  or  character  of  the  official  to  be 
controlled.  However  humble  he  be,  once  he  has  a 

27  Cf.  Dicey,  Law  of  the  Constitution  (8th  ed.),  chap,  xii,  [and 
his  paper  in  the  Law  Quarterly  Review  for  1915  on  the  Growth 
of  Administrative  Law  in  England]. 


162       LAW    IN    THE    MODERN    STATE 

discretionary  power,  he  exercises  it  protected  from 
all  control.  However  powerful  he  may  be,  he  must 
act  in  conformity  with  the  law."  28 

In  several  cases  special  statutes  have  expressly 
given  the  courts  the  control  over  the  discretionary 
power  of  the  administration.  Certain  statutes,  again, 
have  definitely  organised  the  means  of  protest  against 
the  decisions  of  administrative  officials  before  the 
Court  of  Quarter  Sessions  or  before  the  County 
Courts  which  have  almost  everywhere  replaced  them. 
In  New  York,  for  example,  any  interested  person 
may  protest  before  the  County  Court  against  deci- 
sions of  the  Superintendent  of  Charities  relative  to  a 
home  for  the  poor. 

So  has  been  slowly  organised  the  legal  protection 
of  the  individual  against  the  state.  It  is  an  incom- 
plete evolution  as  yet  both  in  the  United  States  and 
England;  the  check  on  power  has  not  yet  reached 
maturity.  The  idea  of  discretion  is  still  powerful  in 
administrative  action.  I  shall  show  in  the  next  chap- 
ter how  French  law  has  freed  itself  from  this  concep- 
tion. On  the  other  hand,  the  fact  that  the  control  of 
the  courts  belongs  as  a  rule  to  the  ordinary  tribunals 
which  by  origin  and  by  nature  are  foreign  to  the  task 
of  administration  deprives  the  private  citizen  of  a 
guarantee  given  to  him  by  the  French  system.29  The 

28  Goodnow,  Principles  of  Administrative  Law  in  the  United 
States,  p.  322. 

29  [Professor  Dicey,  of  course,  argues  in  an  exactly  contrary 
sense.     Cf.  the  passage  cited  in  the  last  note  but  one.1 


ADMINISTRATIVE    ACTS  1163 

American  courts  are,  where  the  executive  power  is 
concerned,  curiously  timid.  "For  political  reasons," 
writes  Professor  Goodnow,30  "the  courts  have  gener- 
ally explained  that  they  will  not  exercise  their  juris- 
diction when  to  do  so  would  bring  them  into  direct 
conflict  with  the  chief  executive."  There  is  no  doubt 
on  this  head  where  the  president  is  concerned;  and 
the  same  appears  true  of  the  Governors  of  the  dif- 
ferent states.  This  progressive  evolution  of  French 
administrative  law  was  strikingly  affirmed  at  the 
Congress  of  Administrative  Sciences  held  at  Brussels 
in  August,  1910.  It  became  there  apparent  that  no 
modern  public  law  so  completely  protects  the  private 
citizen  as  the  French.  France  leads  the  way  in  pri- 
vate as  in  public  law.  In  private  law,  the  cause  is 
the  antiquity  of  its  code  which  after  more  than  a  cen- 
tury, allows  its  lawyers  and  its  courts  to  free  them- 
selves from  the  bonds  of  too  narrow  an  interpretation. 
In  public  law  the  cause  is  twofold.  In  the  first  place, 
it  has  no  code  at  all.  In  the  second  place  a  Council 
of  State,  in  origin  and  procedure  an  administrative 
court,  in  independence  and  impartiality,  is  like  an  or- 
dinary court.  The  two  elements  have  combined  to 
create  a  body  of  law  providing  the  fullest  protection 
to  the  private  citizen.31 

30  Op.  cit,  p.  323. 

31  [Professor  Dicey 's  citation  of  De  Tocqueville's  adverse  opin- 
ion is  here  of  interest.     GEuvres  Completes,  I,  174-5.     L'Ancien 
Regime  et  la  Revolution,  p.  81.] 


CHAPTER 


THE  BORDERLINE  OF  ADMINISTRATIVE 

LAW 

ADMINISTRATIVE  law  is,  however,  more  complex  in 
nature  than  the  preceding  chapter  has  suggested. 
The  part  it  has  followed  and  the  transformation  it 
has  undergone  are  worth  discussing  for  the  light  they 
shed  on  the  change  in  public  law. 


The  imperialist  theory  of  the  state  corresponds  to 
the  individualist  concept  of  private  law.  It  consid- 
ers the  state  as  a  possessor  of  sovereignty  which  is 
manifested,  not  merely  in  law,  but  also  in  adminis- 
trative acts.  Private  law  conceives  of  the  individual 
as  the  subject  of  a  certain  number  of  rights  which  are 
synthesised  into  the  two  rights  of  liberty  and  prop- 
erty. We  are  always,  that  is  to  say,  dealing  with  the 
state  that  possesses  the  subjective  rights  of  liberty  and 
property.  The  state  could  not  touch  either  of  these 
rights ;  or  at  least  it  could  limit  them  only  to  a  fixed 
degree  and  under  certain  conditions.  In  such  a  sys- 
tem, therefore,  every  administrative  case  fundamen- 

164 


ADMINISTRATIVE  LAW  165 

tally  gives  rise  to  the  question  as  to  whether  the  sub- 
jective right  of  the  individual  has  or  has  not  been 
attacked  by  the  state,  in  its  administrative  activity, 
beyond  its  legal  limits.  Every  administrative  case 
thus  poses  a  question  of  subjective  right. 

Administrative  law  is  thus  exclusively  subjective. 
For  the  government,  the  question  it  raises  is  the  limit 
of  sovereignty.  For  the  private  citizen,  the  question 
is  whether  the  subjective  rights  of  liberty  and  prop- 
erty have  been  violated.  Every  case,  that  is  to  say, 
leads  to  the  recognition  of  a  subjective  right  either  of 
the  government  or  of  the  private  citizen,  and  must 
consequently  end  in  the  condemnation  of  one  or  the 
other.  This  is  what  was  meant  by  Ducrocq  when 
he  said  that  in  order  to  have  a  natural  administrative 
law  "the  case  must  arise  through  an  administrative 
act  in  the  technical  sense  and  the  claim  based  upon  it 
must  arise  from  the  violation  of  a  right  and  not 
simply  through  the  violation  of  an  interest."  * 

No  one  can  read  the  decisions  of  the  Council  of 
State  without  seeing  that  for  many  years  that  court 
has  given  two  kinds  of  decisions,  to  all  seeming  en- 
tirely different.  In  some,  the  Council  annuls  the  ad- 
ministrative act  or  refuses  the  annulment.  In  others 
there  is  annulment  accompanied  by  the  condemna- 
tion of  penalties  against  a  private  citizen  or  the  gov- 
ernment. If  there  are  two  such  different  categories 
of  decisions,  there  are  surely  two  categories  of  cases. 

For  a  long  time,  indeed,  we  have  distinguished,  in 

1Droit  Administratif  (7th  ed.),  II,  p.  17. 


166       LAW    IN    THE    MODERN    STATE 

the  technical  terms,  between  a  case  involving  pen- 
alties and  a  case  where  an  ultra  vires  act  is  simply  an- 
nulled. This  terminology  has  behind  it  the  conse- 
cration of  statute.  In  the  9th  Art.  of  the  Act  of  1872 
organising  the  Council  of  State  of  the  Third  Repub- 
lic, it  is  enacted  as  follows :  "The  Council  of  State 
shall  decide  in  a  sovereign  sense  all  cases  of  adminis- 
trative law  and  requests  to  annul  on  the  ground  of 
ultra  vires  acts  of  the  different  administrative  author- 
ities." As  the  result  of  the  favour  accorded  by  the 
decree  of  November  2,  1864,  and  of  the  confidence 
inspired  by  the  Council  of  State,  cases  in  which  the 
plea  of  ultra  vires  was  concerned  grew  in  number. 
The  Council  of  State,  indeed,  insisted  on  treating 
such  a  plea  as  subsidiary  to  the  first  and  on  receiving 
it  only  when  no  other  remedy  was  possible.  Never- 
theless so  just  has  been  the  number  of  such  cases  this 
latter  argument  has  been  abandoned. 

Its  abandonment  was  necessary  in  order  to  deter- 
mine the  real  distinction  between  ultra  vires  adminis- 
trative cases  and  the  ordinary  type.  Dominated  as  it 
was  by  a  subjective  concept — the  idea  that  every  case 
involves  a  right  deduced  from  abstract  justice — the 
lawyers  found  this  no  easy  task.  They  did  not  per- 
ceive that  the  growth  of  cases  dealing  with  ultra  vires 
acts — a  growth  due  to  the  pressure  of  facts  and  in 
some  sort  opposed  to  the  desire  of  the  court — revealed 
a  profound  change  of  which  they  were  blindly  igno- 
rant. Sovereignty,  on  the  one  hand,  and  individual 


ADMINISTRATIVE    LAW  167 

right,  on  the  other,  were  in  process  of  disappearance. 

1  cannot  even  summarise  all  that  has  been  written 
on  the  plea  of  ultra  vires  in  administrative  law.2    But 
something  must  be  said  of  the  theory  of  M.  Laferriere 
whose  book,  as  I  have  pointed  out,  marks  an  epoch  in 
the  evolution  of  public  law.3     He  distinguishes  be- 
tween cases  of  simple  annulment  and  cases  of  com- 
plete jurisdiction.     In  the  first  he  argues  the  court 
simply  annuls  or  refuses  to  annul.     In  the  second  the 
court  can  pass  on  all  questions  of  fact  and  law.     The 
typical  example  of  annulment  is  a  case  concerning 
the  plea  of  ultra  vires.     Four  causes  give  rise  to  it: 
There  may  be  violation  of  an  enabling  act,  of  a  for- 
mal statute,  abuse  of  power,  or  violation  of  a  funda- 
mental statute.     In  the  last  case  the  plea  can  only  be 
made  by  the  person  who  has  directly  suffered  from 
the  violation  of  his  right.     Such  a  plea,  moreover,  is 
always  a  subsidiary  method. 

But  none  of  this  is  in  reality  explained.  Why  dis- 
tinguish between  annulment  and  complete  jurisdic- 
tion? What  is  the  basis  of  it?  We  are  not  told. 
Why  should  the  plea  of  ultra  vires  be  merely  acces- 
sory? No  reason  is  suggested.  Why,  in  certain 
cases,  is  the  plea  open  to  any  interested  party?  Why, 
in  other  cases,  is  it  only  open  to  a  person  whose  sub- 

2  [C/.  Aucoc,  in  Comptes  Rendus  de  1 'Academic  des  Sciences 
Morales  et  Politiques,    1875;  Laferriere,  Traite   (2nd  ed.),  II, 
394-560;  Tournyol  du  Clos,  Essai  sur  le  recours  pour  exces  de 
pouvoir  (1905).] 

3 Laferriere,  Juridiction  et  Contentieux  (2nd  ed.),  II,  394. 


168       LAW    IN    THE    MODERN    STATE 

jective  right  has  been  attacked?  To  scrutinise  the 
theory  at  close  quarters  is  to  reveal  only  uncertainty 
and  contradiction. 

In  simple  fact  the  decisions  of  the  Council  of  State 
have  become  broader  and  more  precise  under  the 
pressure  of  practical  needs.  The  plea  of  ultra  vires 
is  no  longer  of  secondary  importance.  It  is  not  fun- 
damental where  a  general  council  draws  up  a  regu- 
lar clause,  even  though  the  plaintiff  may  have  made 
his  plea  against  such  choice.  Any  interested  person, 
having  merely  a  moral  and  indirect  relation  to  the 
act,  may  ask  for  the  cessation  of  its  results.  The  plea 
no  longer  aims  at  protecting  the  subjective  right  of 
the  private  citizen.  The  Council  of  State  has  admit- 
ted a  plea  against  irregular  nomination  to  the  Civil 
Service  of  any  person  having  the  necessary  qualifica- 
tion for  such  office  and  even  the  plea  of  a  profes- 
sional association  of  officials  belonging  to  the  service 
concerned.4  This  does  not  of  course  mean  that  any 
qualified  lawyer  who  may  protest  against  an  irregu- 
lar nomination  to  the  Bench  has  himself  to  be  nomi- 
nated. 

In  such  circumstances  Laferriere's  theory  is  use- 
less. We  must  search  in  other  directions  for  the  an- 
swer. Everything  becomes  clear  once  we  eliminate 
the  idea  of  subjective  right.  We  must  replace  it  by 
the  fundamental  notion  of  modern  law.  We  must 

4  The  cases  are  numerous;  cf.  especially  the  Lot-Molinier  de- 
cision, Recueil,  1909,  p.  780;  the  Alcindor  decision,  Recueil,  1906, 
p.  906;  Ibid,  1908,  p.  1016;  Ibid,  1910,  p.  719. 


ADMINISTRATIVE    LAW  169 

replace  it  by  the  concept  of  a  social  function,  of  a 
legal  situation  to  which  the  idea  of  public  service  is 
intimately  bound.  The  noble  jurisprudence  of  the 
Council  of  State  on  the  plea  of  ultra  vires  is  only  the 
translation  of  these  ideas  into  practical  terms. 


II 


The  question  raised  in  an  administrative  case  is 
whether  there  exists  a  subjective  legal  situation  and 
the  extent  of  it.  It  arises  when,  after  an  administra- 
tive act  has  been  performed,  we  have  to  know  if  it 
has  created  a  subjective  legal  situation  or  if  it  has 
modified  or  destroyed  a  pre-existing  situation.  When 
such  a  question  is  raised,  it  is  the  business  of  the  ad- 
ministrative courts  to  analyse  it  and  to  measure  the 
penalty.  Its  decision  has  then  a  merely  relative  and 
individual  bearing  parallel  to  the  situation  of  which 
it  is  the  expression.  The  plea  can  only  be  made  by 
the  person  who  claims  to  have  benefited  from  the  sit- 
uation whose  existence  or  extent  is  called  into  ques- 
tion. 

It  may  be,  on  the  other  hand,  that  the  only  question 
the  case  raises  is  whether  the  administration  has  in 
the  most  general  sense  violated  the  law.  That  is 
simply  a  question  of  objective  law  that  the  judge  de- 
cides. The  case  comes  before  an  objective  tribunal. 
The  judge  simply  states  whether  the  law  has  or  has 
not  been  violated.  If  he  thinks  it  has  not  been,  he 
rejects  the  plea;  if  he  thinks  it  has,  he  annuls  the  pro- 


170       LAW    IN    THE    MODERN    STATE 

tested  act.  His  decision  is  purely  general.  The  act 
is  annulled  for  every  citizen  and  not  less  for  the  ad- 
ministration itself.  The  judicial  decision  in  such  a 
case  is  as  general  as  the  statute  that  has  been 
violated. 

Such  a  plea  is  certainly  not  admissible  against 
every  administrative  act.  Obviously,  for  example, 
there  cannot  be  annullment  of  the  material  work  of 
the  administration.  It  is  possible  to  annul  an  effect 
of  law;  we  cannot  annul  a  fact.  Nor  is  it  .admissible 
where  the  administrative  act  gives  rise  to  a  subjec- 
tive situation.  It  is  not  then  a  question  of  legality 
but  of  knowing  whether  the  new  subjective  situation 
destroys  or  modifies  the  old,  and  the  person  by  whom 
the  plea  is  made  must  be  a  party  to  the  particular 
act.  In  other  words,  where  the  situation  is  subjec- 
tive, the  administrative  law  is  personal  also.  The  ob- 
jective plea  is  possible  only  when  the  act  is  objective. 
Such  acts  are  numerous  enough,  since  they  include 
everything  based  on  ordinance.  From  the  material 
point  of  view,  they  are  of  course  statutes;  but  from 
the  point  of  view  of  formal  theory  they  involve  the 
plea  of  ultra  vires  because  they  derive  from  a  govern- 
ment official. 

Merely  administrative  acts  do  not  create  a  personal 
situation.  There  are  acts  which  create  either  a 
purely  objective  legal  problem  or  raise  the  question 
of  capacity.  Such  acts  are  very  frequent  in  public 
law;  and  with  the  growth  of  the  objective  conception 
their  number  is  continually  increased.  A  clear  ex- 


ADMINISTRATIVE    LAW  171 

ample  is  the  nomination  of  a  civil  servant.  This  does 
not  in  reality  produce  any  effect  of  law.  It  does  not 
create  capacity  nor  does  it  give  the  official  status. 
It  is  simply  the  condition  that  gives  rise  to  that  legal 
situation  we  call  the  status  of  a  civil  servant  with  all 
that  it  entails — capacity,  regulation,  salary,  pension. 
Very  often  the  deliberations  of  an  administrative 
council  are  a  declaration  of  will  from  which  an  act 
draws  its  vitality.  A  grant  from  a  general  or  mu- 
nicipal council,  for  instance,  is  the  necessary  condi- 
tion from  which  the  prefect  or  the  mayor  has  the 
capacity  to  issue  an  ordinance. 

These  different  acts,  like  all  regulating  acts,  have 
an  objective  character.  They  are  not  individual  but 
general.  They  affect  the  whole  citizen  body,  partic- 
ularly every  one  affected  by  the  department  that  does 
the  act.  In  fact,  they  do  not  themselves  directly  pro- 
duce any  legal  result;  but  since  they  condition  the 
application  of  the  statute  which  does  create  that  ef- 
fect, they  indirectly  have  this  consequence.  They 
are  acts  of  will  and  therefore  cannot  escape  the  con- 
trol of  the  courts.  Objective  in  character,  they  give 
rise  to  an  objective  process.  A  plea  may  be  brought 
by  any  interested  citizen.  The  judge  does  not  penal- 
ise ;  he  either  annuls  or  refuses  to  annul,  and  his  de- 
cision is  purely  general  in  its  bearing. 

Such  objective  administrative  law,  most  clearly 
seen  in  the  sphere  of  ultra  vires  acts,  is  the  great  and 
original  creation  of  French  jurisprudence.  It  to-day 
dominates  all  public  law,  I  have  now  to  show  its 


172       LAW    IN    THE    MODERN    STATE 

extent  and  development  and  how  its  application  fits 
in  with  the  fundamental  concept  of  public  service. 


Ill 


French  law  has  specially  organised  certain  objec- 
tive pleas.  A  notable  example  is  the  case  of  electors, 
where  the  simple  question  is  whether  the  procedure 
has  been  legal  and  where,  if  illegality  results  in  an- 
nulment, the  result  is  obviously  general.  Similarly 
with  the  jurisdiction  of  the  Court  of  Conflicts;  the 
only  question  for  the  court  is  the  legality  of  the  pro- 
cedure. Here,  by  hypothesis,  the  administrative  law 
is  objective. 

On  the  other  hand,  the  plea  of  ultra  vires  is,  so  to 
speak,  the  general  synthesis  which  dominates  the 
whole  of  law.  An  objective  act,  whether  done  by 
the  president  of  the  Republic,  or  by  the  humblest  of- 
ficial, may  be  attacked  by  any  citizen  on  the  ground 
of  ultra  vires  and  the  Council  of  State  will  pass  on  its 
legality.  The  cost  is  a  60  centime  stamp.  No  right 
is  invoked.  The  citizen  is  living  under  trie  regime 
of  state  and  law  and  where  the  government  violates 
the  law  he  has  the  right  to  demand  judicial  censure. 
Abuses,  of  course,  must  be  prevented;  and  the  courts 
therefore  demand  that  the  intervener  shows  a  special 
interest  before  admitting  the  plea.  That  interest, 
however,  may  be  as  indirect  as  a  tax  payer's 5  interest 
in  seeing  that  the  Court  of  his  commune  does  not 

5  Casanova  decision,  Recueil,  1901,  p.  333, 


ADMINISTRATIVE    LAW  173 

make  irregular  contracts,6  or  a  simple  moral  interest, 
as  where  individuals  who  have  the  qualifications  for 
a  certain  official  position  may  prevent  the  nomination 
of  those  who  lack  the  necessary  titles. 

The  objectivity  of  the  plea  of  ultra  vires  is  clearly 
in  the  fact  that  where  the  Council  of  State  deals  with 
the  case  it  must  either  annul  or  refuse  to  annul  the 
act  concerned.  It  cannot  merely  condemn  the  act. 
Sometimes  it  may  send  the  parties  before  a  minister; 
but  that  is  only  a  direct  invitation  to  the  minister  to 
conform  to  the  verdict  of  the  courts.  Annullment  is 
perfectly  general  and  binding  upon  citizen  and  gov- 
ernment alike. 

I  said  above  that  there  was  a  moment  when  juris- 
prudence appeared  to  admit  several  methods  of 
pleading  against  administrative  acts — incapacity, 
wrong  forms,  abuse  of  power,  violation  of  statute; 
and  it  applied  the  different  rules  in  its  reception  of 
the  plea.  To-day  no  such  distinction  is  made.  The 
only  question  is  whether  any  statute  whatever  has 
been  violated.  The  question  is  always  the  same. 
The  conditions  under  which  a  plea  is  received  are 
always  the  same.  Sometimes  it  still  seems  as  though 
the  distinction  is  drawn  between  incapacity,  viola- 
tion of  statute,  and  abuse  of  power;  but  this  is  rather 
the  terminology  of  custom  than  the  admission  of 
reality.7 

The  plea  of  ultra  vires  may  be  made  against  any 

6  Lot-Molinier  decision,  Recueil,  1903,  p.  780. 
7C/.  Hauriou,  Droit  Administratif  (1911),  p.  429;  Tournyol 
du  Clos,  op.  cit. 


174       LAW    IN    THE    MODERN    STATE 

objective  act  of  any  governmental  institution  or  offi- 
cial with  the  exception  of  parliament,  the  two  cham- 
bers, the  courts  and  judicial  offices.  The  reason  for 
their  exception  is  of  course  obvious.  There  exists, 
indeed,  special  control  of  legal  personages  and  ap- 
peal against  the  decision  of  a  court  or  a  judicial  offi- 
cer can  naturally  be  taken  only  before  an  institution 
with  the  same  purpose.  Were  it  otherwise,  we 
should  violate  the  unbreakable  principle  that  justice 
and  administration  must  be  kept  separate. 

Why  except  the  decisions  of  parliament  or  of  one 
of  its  parts?  Doubtless  a  time  will  come,  perhaps 
not  distant,  when  the  exception  will  not  be  made ;  but 
that  evolution  has  not  yet  been  accomplished.  The 
basis  of  the  exception  is  the  persistence  still  of  the  old 
idea  that  parliament  and  the  chambers  directly  ex- 
press the  sovereign  will  of  the  nation.  I  pointed  out 
above  the  clear  tendency  to-day  to  recognise  the  pos- 
sibility of  controlling  statutes  by  legal  action;  a 
fortiori  the  day  will  come  when  the  high  court  will 
take  cognisance  of  the  legality  of  any  decision  coming 
from  a  single  chamber  or  from  an  office  of  that 
chamber. 

So  far  as  the  president  is  concerned,  his  acts  can 
always  be  attacked  on  the  ground  of  their  ultra  vires 
character.  Undoubtedly  since  1875  trie  character  of 
this  office  has  undergone  a  profound  change.8  While 

8  [Cf-  Jeze,  La  Presidence  de  la  Republique,  Revue  de  Droit 
Public,  1913,  p.  112;  H.  Leyret,  Le  President  de  la  Republique 
(1912).] 


ADMINISTRATIVE    LAW  175 

this  may  be  noted  in  passing,  its  importance  can  only 
be  mentioned,  because  it  belongs  rather  to  politics 
than  to  public  law.  In  the  political  system  inaugu- 
rated by  the  constitutions  of  1791  and  1848  the  chief 
of  the  state  was  clothed  with  executive  power  in  its 
original  sense  and  was  thus  the  true  incarnation  of 
one  constitutional  element  of  sovereignty.  He  had  a 
representative  character  in  the  field  of  the  executive 
such  as  parliament  exercised  in  the  field  of  legisla- 
tion. His  acts  were  thus  the  direct  emanation  of 
national  sovereignty  and,  like  parliamentary  acts, 
beyond  the  scope  of  administrative  law. 

Undoubtedly  those  who  constructed  the  constitu- 
tion of  1875  had  the  same  conception  in  mind.  This 
is  clearly  shown  by  the  Septennial  Law,  "which  con- 
fided for  seven  years  executive  power  to  Marshal 
MacMahon."  Successive  presidents  were  to  have  the 
same  character  as  he.  Like  him,  they  were  to  have 
that  part  of  sovereignty  we  call  the  executive  power. 
They  were  to  be  representative  of  the  nation  and  so 
beyond  the  reach  of  law. 

Since  1875  trie  president  has  progressively  lost  his 
character.  Little  by  little  he  has  ceased  to  be  a  rep- 
resentative of  national  sovereignty.  He  has  been 
simply  an  administrative  agent,  a  high  agent,  indeed, 
of  the  administrative  hierarchy,  but  still  no  more 
than  an  agent.9  As  a  result,  all  his  acts  can,  as  a  mat- 
ter of  principle,  be  attacked  on  the  ground  of  their 

9  [The  change,  under  M.  Poincare,  since  1913,  is,  however, 
notable.] 


176       LAW    IN    THE    MODERN    STATE 

ultra  vires  character.  This  change  is  not  connected 
with  the  disappearance  of  the  imperialist  notion  of 
sovereignty.  That  notion  might  have  remained  un- 
broken even  though  the  character  of  the  presidency 
had  changed.  The  two  evolutions  are  parallel  but 
independent.  The  principle  cause  of  the  change  is 
to  be  found  in  the  origin  of  the  office.  From  the  fact 
that  he  is  elected  by  parliament  it  has  been  concluded 
that  the  latter  alone  is  a  representative  organ  concen- 
trating in  itself  all  sovereignty,  and  it  has  been  sug- 
gested that  since  it  makes  the  president,  he  can  be 
only  an  administrative  agent.  It  is  in  this  way  that 
the  transformation  of  his  office  has  been  harmonized 
with  the  general  evolution  of  public  law  that  no  act 
of  his  is  beyond  the  reach  of  justice. 

There  are,  however,  two  classes  of  acts  still  beyond 
the  reach  of  the  courts.  In  the  first  place  acts  con- 
nected with  the  constitutional  relation  of  the  cham- 
bers of  the  government,  as  for  example  the  convoca- 
tion or  adjournment  of  the  chambers,  the  closing  of  a 
parliamentary  session,  the  convocation  of  the  electo- 
ral colleges,  with  all  of  these,  and  for  a  perfectly 
simple  reason,  the  courts  cannot  concern  themselves. 
The  government,  in  this  regard,  acts  under  the  direct 
control  of  parliament,  and  to  submit  its  action  to  the 
courts  would  be,  indirectly,  to  submit  the  action  of 
parliament  to  the  direction  of  the  Council  of  State. 
For  the  present  this  is  impossible. 

This  is  made  very  clear  in  what  concerns  the  decree 
of  convocation  for  elections.  Each  chamber  is  given 


ADMINISTRATIVE    LAW  177 

by  the  constitution  "the  right  to  judge  the  eligibility 
of  its  members  and  the  legality  of  their  election."  10 

To  recognise  in  the  Council  of  State  a  power  to 
pass  upon  the  regularity  of  the  decree  would  be  to 
permit  its  encroachment  upon  the  power  of  the 
Chambers.  Thus,  the  Council  of  State  has  itself  de- 
cided in  a  recent  decision.  It  rejected  the  plea  of  a 
Councillor  General  against  the  decree  of  April  2, 
1912,  fixing  May  igth  for  the  election  of  a  senator  for 
Belfort.  "The  legislative  assemblies  having  the 
right  to  verify  the  powers  of  their  members  are  alone 
competent  in  the  absence  of  a  contrary  text  to  pass 
upon  the  legality  of  acts  which  constitute  the  prelim- 
inaries of  the  elective  process."  J1 

A  second  category  of  acts  beyond  the  power  of  the 
courts  are  diplomatic  acts;  that  is  to  say,  acts  con- 
cerning the  relation  of  France  with  foreign  powers. 
The  jurisprudence  on  this  point  is  as  constant  as  it  is 
continuous.  No  plea  of  ultra  vires  will,  under  this 
head,  be  received.  Very  notably  by  its  decision  of 
1904,  the  Council  of  State  has  decided  that  the  pri- 
vate citizen  cannot  make  use  of  administrative  law 
against  the  French  state  in  the  relation  to  the  declara- 
tion annexing  Madagascar.12  The  reason  of  this  is 
perfectly  clear.  Diplomatic  acts  directly  interest  the 
national  security.  Government  action,  here  indis- 
pensable to  the  national  safety,  cannot  be  submitted 

10  Law  of  July  16,  1875,  art.  10. 

11  Le  Temps,  August  11,  1912. 

12  Recueil,  1904,  p.  662;  Revue  de  Droit  Public,  1905,  p.  91, 


178       LAW    IN    THE    MODERN    STATE 

to  a  litigious  criticism.  The  diplomatic  service  oper- 
ates under  special  conditions.  It  is  the  only  service 
the  management  of  which  entails  relationship  with 
foreign  governments.  Large  as  is  the  control  exer- 
cised by  the  courts  over  internal  service,  it  clearly 
cannot  extend  to  the  diplomatic  services.  Taken  all 
in  all,  it  is  always  the  theory  of  public  service  that 
remains  as  the  governing  principle  of  all  these  solu- 
tions. 

IV 

These  exceptions,  apart  from  every  act  of  a  presi- 
dent in  his  official  capacity,  can  be  attacked  on  the 
ground  of  ultra  vires.  This  is  a  great  step  forward 
of  which  the  importance  can  hardly  be  overesti- 
mated. 

It  is  not  long  since  the  decision  was  made  that 
every  decree  regulating  public  administration,  that 
is  to  say  ordinances,  made  on  the  initiative  of  the  leg- 
islator with  the  advice  of  the  Council  of  State,  could 
not  be  touched  by  law.  This  is  no  longer  the  case. 
In  its  decision  of  December  6,  1907,  the  Council  of 
State  expressly  recognised  that  the  plea  is  accept- 
able. Its  language  is  perhaps  unfortunate  in  that  it 
speaks  of  legislative  delegation;  but  the  phrase  per- 
haps makes  the  decision  rather  of  wider  bearing  than 
the  contrary.  On  the  other  hand,  the  consequences 
of  the  following  passage  are  important.  "Consider- 
ing that  conformably  to  the  terms  of  Art.  9  of  the 
Act  of  May  4,  1872,  plea  may  be  made  for  the  annul- 


ADMINISTRATIVE    LAW  179 

ment  of  administrative  acts  on  the  ground  of  ultra 
vires ;  considering  further  that  those  acts  of  the  head 
of  the  state  which  regulate  administration  are  per- 
formed by  virtue  of  legislative  delegation  and  conse- 
quently imply  the  exercise  to  the  full  extent  of  the 
powers  conferred  by  the  legislature  on  the  govern- 
ment in  the  particular  case;  nevertheless,  since  they 
are  derived  from  administrative  authority,  they  are 
subject  to  the  action  foreseen  in  Art.  9  as  cited 
above.  .  . 

The  plea  of  ultra  vires  thus  obtains  against  every 
governmental  act  to  which  legal  consequences  attach. 
Here  is  involved  in  this  the  abolition  of  an  idea 
which  had  long  in  France  the  force  of  a  dogma  and 
is  still  law  abroad.  It  abolishes  what  are  called  in 
French  governmental  acts  and  in  Germany  Staats- 
notrecht  or  Notverordnungen** 

By  these  phrases  are  meant  acts  which,  either  by 
reason  of  their  intrinsic  nature,  or  the  source  of  their 
origin,  are  open  to  the  plea  of  ultra  vires,  but  are  de- 
clared beyond  the  law  by  reason  of  the  political  end 
they  are  intended  to  serve.  The  phrase  "political 
end"  is  used  in  its  most  ordinary  sense.  The  word 
"political"  has  indeed  two  senses:  it  may  mean  the 
act  of  governing  a  nation,  of  assuring  its  happiness 
and  prosperity;  that  is  its  highest  and  noblest  sense. 
It  may  also  mean,  and  that  is  its  ordinary  acceptation, 

13Recueil,  1907,  p.  913,  cf.  Ibid,  1908,  p.  1094,  and  Ibid,  1911, 
p.  797. 

14  Jellinek,  Gesetz  und  Verordnung,  p.  377  [and  W.  Harrison- 
Moore,  Act  of  State  in  English  Law  (1906)]. 


180      LAW    IN    THE    MODERN    STATE 

the  art  of  obtaining  office  and  of  remaining  there 
after  arrival.  Acts  determined  by  a  political  end 
were  placed  beyond  the  power  of  law  because  they 
were  usually  made  to  keep  a  government  in  office. 
It  was  raison  d'Etat  under  another  name. 

For  France  this  is  happily  no  longer  true;  and  its 
disappearance  is  due  to  the  impartial  and  independ- 
ent jurisprudence  of  the  Court  of  Conflicts  and  the 
Council  of  State.  It  has  been  made  possible  by  the 
disappearance  of  the  imperialist  theory  of  sov- 
ereignty. The  two  facts  have  been  so  intertwined  as 
to  be  reciprocally  cause  and  effect. 

The  doctrine,  however,  was  long  defended  in 
France  by  high  authority.  It  is  customary  to  cite 
the  well-known  declaration  of  M.  Vivien,  the  re- 
porter of  the  organic  law  of  1849  °f  tne  Council  of 
State :  "There  are  rights,"  he  said,  "the  violation  of 
which  cannot  give  rise  to  an  action  in  the  courts.  In 
a  representative  government,  where  the  principle  of 
responsibility  obtains,  there  are  circumstances  where 
a  great  public  necessity  may  compel  ministers  to  take 
measures  harmful  to  private  rights.  For  such  meas- 
ures they  must  answer  to  political  authority.  To  ren- 
der them  subject  to  the  administrative  courts  would 
be  to  paralyse  an  action  exercised  for  the  common  in- 
terest. It  would  be  to  create  in  the  state  a  new  power 
which  would  threaten  every  other."  It  is  a  skillful 
defense  of  raison  d'TLtat,  but  its  dangers  are  obvious 
enough.  It  was  supported  by  great  lawyers  like 


ADMINISTRATIVE    LAW  l8l 

Dufour 15  and  Batbie.16  The  Council  of  State  made 
a  striking  application  of  it  in  1867  in  relation  to  the 
seizure  by  the  prefect  of  police  of  the  writings  of  the 
Due  d'Aumale — a  seizure  approved  by  the  Minister 
of  the  Interior.  The  Council  of  State  refused  to  hear 
the  action  on  the  ground  that  the  seizure  was  deter- 
mined by  political  reasons.17  Nine  years  later,  under 
a  Republican  government,  the  Court  of  Appeal  of 
Paris  on  the  same  grounds  declared  itself  incompe- 
tent to  hear  the  action  taken  by  the  Prince  Napoleon 
against  the  Minister  of  the  Interior  and  the  Prefect 
of  Police  for  the  issuance  and  enforcement  of  the  de- 
cree of  expulsion  against  him.18  This  was  the  last 
time  that  the  French  court  invoked  so  arbitrary  and 
despotic  a  principle  to  declare  a  plea  non-receivable. 
Political  motive  is  no  longer  a  ground  of  such  action. 
Implicitly,  indeed,  but  none  the  less  clearly,  the 
Court  of  Conflicts  has  rejected  this  doctrine  upon 
the  Jules  Ferry  decree  against  the  religious  congre- 
gations. In  his  argument  M.  Ronjat  for  the  govern- 
ment had  urged  that  "it  may  be  suggested  that  acts 
done  by  public  authority  are  government  acts  beyond 
the  competence  of  the  courts.  .  .  Did  such  acts  ex- 
ist, this  decree  would  be  one  of  them.  ...  If  you 

'  15  Droit  Public,  IV,  600. 

16Droit  Administratif,  VII,  401.  [Cf.  a  full  discussion  and 
Bibliography  in  M.  Le  Courtois,  Theorie  des  Actes  de  Gouverne- 
ment,  1899.] 

"Recueil,  1867,  p.  472. 

18  Sirey,  1876,  II,  297. 


182       LAW    IN    THE    MODERN    STATE 

think  that  the  act  has  not  the  character  thus  indi- 
cated, you  have  to  examine  if  it  is  an  administrative 
act  to  be  dealt  with  only  by  the  administrative  courts 
or  if  it  comes  within  the  scope  of  the  ordinary  tribu- 
nals." The  question  was  well  framed.  The  Court 
of  Conflicts  decided  "that  it  could  not  be  the  busi- 
ness of  the  judicial  authority  to  annul  the  effect  or 
prevent  the  execution  of  .this  administrative  act  .  .  . 
if  the  petitioners  think  that  the  measure  taken  against 
them  is  unauthorised  by  statute,  they  must  go  to  the 
administrative  courts  to  obtain  its  annullment."  19 

The  Court  of  Conflicts  rejected  the  plea  of  politi- 
cal character  and  admitted  the  action  of  ultra  vires. 

The  Council  of  State  has  not  less  clearly  rejected 
the  same  theory  also.  The  Minister  of  War,  on  the 
basis  of  the  law  of  June  22,  1886,  relating  to  members 
of  the  families  who  have  reigned  in  France,  had 
struck  the  names  of  certain  members  of  the  House  of 
Orleans,  and  of  Prince  Murat,  from  the  Army  list. 
They  combined  to  sue  him,  and  the  Minister  of  War 
asked  that  the  rejection  of  their  plea  on  the  ground 
that  political  problems  were  involved.  The  Coun- 
cil rejected  his  demand.  It  pointed  out  "that  it  is 
clear  from  the  very  text  of  the  ministerial  decision 
that  it  was  taken  in  the  application  of  Art.  9  of  the 
Act  of  June  22,  1886.  It  was  thus  taken  in  the  exer- 
cise of  powers  given  to  the  Minister  to  ensure  the  exe- 
cution of  the  laws.  Decisions  made  for  that  end  may 
be  brought  before  the  Council  of  State."  The  Coun- 
19  Sirey,  1881,  III,  85. 


ADMINISTRATIVE    LAW  183 

cil  rejected  the  plea  of  the  Prince  of  Orleans  but  de- 
cided in  favour  of  Prince  Murat.20 

Several  years  later  this  decision  was  confirmed  by 
the  Court  of  Conflicts.  It  decided,  in  three  separate 
judgments,  that  political  motives  do  not  invalidate 
judicial  capacity.  The  problem  involved  was  the 
seizure  by  the  prefects,  acting  on  governmental  in- 
structions issued  in  accordance  with  Art.  10  of  the 
Code  of  Criminal  Instructions,  of  certain  pamphlets 
and  portraits  of  the  Comte  de  Paris.21  Despite  these 
reiterated  decisions,  this  dangerous  theory  contin- 
ually reappears.  It  is  the  natural  tendency  of  a  gov- 
ernment to  desire  the  withdrawal  of  its  acts  from  the 
control  of  the  courts.  In  1911  the  Court  of  Con- 
flicts had  again  to  condemn  this  effort.  It  asserted 
judicial  power  to  pass  upon  a  suit  brought  against 
the  Minister  of  France  to  Haiti,  who  had,  after  a 
series  of  incidents,  refused  to  marry  two  French  citi- 
zens. The  Court  of  Conflicts  decided  that  while 
diplomatic  acts  are  without  the  category  of  ordinary 
law,  acts  merely  inspired  by  diplomatic  reasons  but 
not  in  themselves  diplomatic  are  not  so  protected. 
The  decision  holds  "that  it  matters  little  when,  as  in 
this  case,  the  intervention  of  the  diplomatic  author- 
ity is  not  contrary  to  the  clauses  of  the  treaty,  is  not 
prohibited  by  local  legislation,  that  his  refusal  should 
have  been  inspired  by  political  motives."  The  im- 

20Sirey,  1889,  III,  29. 
21Sirey,  1890,  III,  32. 
22Recueil,  1911,  p.  400;  Sirey,  1911,  III,  105. 


184       LAW    IN    THE    MODERN    STATE 

portance  of  the  decision  lies  in  the  opinion  of  the 
court  that  reasons  of  external  politics  are  no  more 
than  reason  of  internal  politics  valid  ground  for  es- 
cape from  judicial  control.  The  plea  of  ultra  vires 
is  thus  the  supreme  method  by  which  all  administra- 
tive action  is  subject  to  the  courts.  It  is  important  to 
remember  that  it  is  not  based  on  a  subjective  indi- 
vidual right  opposed  to  state  sovereignty.  It  is  based 
on  the  defence  of  an  objective  law,  of  a  law  of  public 
service.  Each  citizen  is,  so  to  speak,  an  agent  of 
government.  He  aids  in  the  protection  of  law.  He 
asks  from  the  courts  the  annulment  of  illegalities.  It 
is,  of  course,  true  that  it  is  the  interest  of  the  citizen 
which  secures  this  intervention;  that  law,  however, 
is  not  protected  by  this  interest  but  by  the  idea  of 
public  service  which,  looking  to  the  good  operation 
of  the  state,  demands  respect  for  law.  The  citizen 
is  armed  to  obtain  this  protection.  It  is  not  his  law, 
not  even  his  interest  that  is  involved  in  the  doing  of 
justice.  The  case  may  not  profit  him  by  its  real  re- 
sult because  its  real  purpose  is  entirely  objective  in 
character.  Such  an  institution  is  obviously  entirely 
social  in  character  and  shows  the  great  change  at- 
tendant on  the  traditional  conceptions. 


Modern  public  law  has  thus  abolished  activity  of 
state;  political  reasons  no  longer  provide  a  bar  to 
legal  action.  But  public  law  has  gone  further  still. 


ADMINISTRATIVE  LAW  185* 

It  has  recognised  that  the  presence  in  an  adminis- 
trative act  of  certain  motives  ipso  facto  strikes  that 
act  with  nullity.  Just  as  there  is  no  longer  an  act  of 
state  so  there  is  no  longer  a  discretionary  act,  an  act 
that  is  to  say  of  a  sheerly  administrative  character. 

A  discretionary  act  is  not  beyond  the  reach  of  law. 
It  can  be  attacked  for  lack  of  capacity  or  incorrect- 
ness of  form.  Formerly  when  such  an  act  was  le- 
gally done  by  a  competent  official  it  could  not  be  at- 
tacked, whatever  the  end  for  which  it  was  made. 
No  tribunal  could  examine  that  end,  not  even  the 
Council  of  State ;  nor  could  the  act  be  annulled  be- 
cause the  end  itself  was  illegal. 

Most  administrative  acts  possess  this  character,  and 
it  was  possible  to  speak  with  justice  of  the  discretion- 
ary power  of  the  administration.  In  the  books  on 
administrative  law  thirty  years  ago  this  phrase  was 
found  practically  on  every  page.  In  many  of  the 
decisions  of  that  time  the  action  of  ultra  vires  found 
no  place  for  similar  reasons.  These  acts  corre- 
sponded to  what  the  Germans  call  acts  of  free  inter- 
pretation about  which  there  is  still  much  contro- 
versy.23 In  France  to-day  the  discretionary  act  no 
longer  exists.  The  Council  of  State  can  always  take 
account  of  the  purpose  by  which  an  act  is  determined 
and  annul  it  if  it  thinks  that  the  administration,  how- 
ever formally  capable,  has  pursued  an  end  other  than 
the  law  had  in  view  in  its  conference  of  powers. 

23  Cf.  Mayer,   Droit  Administratif  Allemand,  I,  212;  Laun, 
Das  freie  Ermessen  und  seine  Grenzen  (1910), 


186       LAW    IN    THE    MODERN    STATE 

Thus  we  have  what  is  called  an  abuse  of  power. 
At  bottom  it  is  simply  an  ultra  vires  act  and  the  plea 
is  of  that  nature.  The  official  violates  the  enabling 
statute  when  he  does  something  outside  his  powers 
or  if  he  does  something  for  a  purpose  he  has  no  right 
to  pursue.  The  phrase  "abuse  of  power"  is  a  felici- 
tous one  because  it  clearly  shows  the  way  in  which 
the  violation  of  the  law  is  made  clear. 

The  working  out  of  this  idea  in  practise  is  due  to 
the  fine  independence  of  the  Council  of  State.  It  is 
due  also  to  the  high  sense  of  justice  by  which  mem- 
bers of  the  department  of  justice — from  M.  Aucoc 
under  the  Second  Empire  to  the  eminent  men  who 
to-day  occupy  the  position — have  been  distinguished. 
But  it  is  worth  while  pointing  out  that  the  theory  of 
the  abuse  of  powers  is  only  the  practical  working  out 
of  the  idea  of  purpose  which  each  day  changes  more 
and  more  the  institutions  of  private  and  public  law. 
In  private  law,  while  the  autonomy  of  individual  will 
involves  a  legal  result,  it  has  not  been  necessary,  in 
order  to  settle  the  validity  of  a  legal  act,  to  find  out 
by  what  purpose  the  individual  was  moved;  it  was 
sufficient  that  he  willed  something,  that  he  had  the 
capacity  to  will.  The  two  elements  of  a  legal  act 
was  the  capacity  to  will  and  the  object  willed.24  Sim- 
ilarly in  public  law,  while  one  attached  the  effect  of 
an  administrative  act  only  to  the  right  of  sovereignty, 
it  had  only  to  be  done  by  a  competent  agent  to  be 
valid.  With  the  disappearance  of  sovereignty  the 

24  Cf.  Duguit,  Transformations  du  Droit  Prive  (1912),  p.  82f, 


ADMINISTRATIVE    LAW  187 

element  of  purpose  became  essential.  Validity  no 
longer  depended  on  the  emanation  of  the  act  from  a 
competent  official.  It  was  necessary  also  that  the 
act  of  the  latter  should  be  determined  by  the  end  the 
statute  had  in  view  when  it  gave  him  his  powers. 
This  end  never  changes;  it  is  always  the  adequate 
operation  of  the  service  with  which  the  official  is 
connected. 

This  makes  plain  why  discretionary  acts  exist  no 
longer.  However  wide  may  be  the  powers  of  an  ad- 
ministration, the  private  citizen  may  always  enquire 
into  its  motives.  The  Council  of  State  may  attempt 
their  measurement,  and  its  dissatisfaction  with  the 
result  may  lead  to  the  annulment  of  the  act. 
Whether  the  official  is  the  president  of  the  Republic 
or  the  humblest  civil  servant  makes  no  difference. 
The  character  of  the  act  is  unimportant.  The  ques- 
tion of  motive  brings  every  act  of  every  official  under 
the  control  of  the  courts. 

It  is  clearly  a  striking  change,  and  it  is  yet  another 
proof  of  the  disappearance  of  sovereignty  as  a  basis 
of  law.  This  evolution  of  course  was  not  accom- 
plished in  a  day.  Its  beginning  goes  back  to  the 
beginning  of  the  Second  Empire,  and  the  earliest 
cases  are  in  themselves  but  of  secondary  interest. 
They  dealt  with  prefectorial  decisions,  regulating 
traffic  in  front  of  stations.  It  was  held  that  in  taking 
his  decision  the  prefect  had  in  view  not  the  security 
and  good  order  of  the  traffic  but  the  interest  of  the 
customer  he  wished  to  benefit.  The  Council  of  State 


1 88       LAW    IN    THE    MODERN    STATE 

annulled  these  decisions  on  the  ground  of  abuse  of 
power.  In  1872,  again,  the  match  monopoly  that 
had  been  established  by  statute  involved  the  payment 
by  the  state  of  compensation  to  certain  suppressed 
factories.  Certain  prefects,  acting  on  the  instruction 
of  the  Minister  of  Finance,  closed  these  factories  in 
virtue  of  the  power  given  them  in  1810,  which  gave 
the  right  to  control  dangerous  and  unhealthy  ware- 
houses. These  decisions  were  annulled  on  the  same 
ground.  From  such  meagre  beginnings  the  concept 
had  undergone  a  wide  expansion  in  French  public 
law. 

From  the  mass  of  cases  in  which  the  Council  of 
State  has  clearly  applied  this  notion  I  can  select  only 
some  of  the  most  characteristic.  It  has  annulled  a 
governmental  decree  which  dissolved  a  municipal 
council  to  redress  electoral  irregularities.  It  was 
held  that  the  government  can  dissolve  a  municipal 
council  only  to  secure  a  good  administration  of  the 
commune.  It  is  thus  an  abuse  of  power  to  commit 
an  act  which,  however  formally  competent,  serves  a 
purpose  that  the  statute  invoked  did  not  have  in 


view.25 


The  Council  of  State  annulled  a  decision  of  Gen- 
eral Andre,  the  Minister  of  War,  who  excluded  a 
grain  dealer  from  participation  from  contracts  issued 
by  the  war  office  on  the  ground  that  his  political  and 
religious  opinions  were  disagreeable  to  the  Minis- 

25  Recueil,  1902,  p.  55;  Sirey,  1903,  III,  p.  113. 


ADMINISTRATIVE    LAW  189 

ter.26  It  was  held  that  the  motives  involved  were 
without  relation  either  to  the  contract  involved  or  to 
the  merchant's  professional  capacity. 

For  some  years  the  prefects,  using  the  power  of 
control  given  to  them  by  the  Act  of  1884,  have  con- 
trolled those  municipal  councils  whose  political  and 
religious  tendencies  displease  them.  Such  consider- 
ations are  of  course  entirely  foreign  to  the  adminis- 
tration of  the  commune.  Every  time  the  problem 
has  come  before  the  Council  of  State,  that  body  has 
rightly  annulled  this  procedure.  The  Prefect  of 
Doubs  desired  to  force  a  commune  to  lease  its  pres- 
bytery. .  He  therefore  declared  that  he  would  not 
approve  certain  proceedings  of  the  Council  until  the 
presbytery  had  been  leased  conformably  to  the  law  of 
1907.  The  decision  was  ruthlessly  annulled.  It  was 
pointed  out  that  the  prefect  had  used  his  powers  for 
ends  quite  alien  from  those  for  which  they  were 
given.27 

It  was  for  long  admitted  that  every  minister  could 
both  delay  the  list  of  candidates  in  the  examination 
of  his  department,  or  even  use  his  discretion  in  taking 
out  the  name  of  the  candidate.  In  1851  the  Council 
of  State  actually  held  that  it  could  not  review  such 
a  decision  as  being  outside  its  jurisprudence.  The 
Court  has  now  held  that  the  plea  may  be  received 
and  that  the  idea  of  discretion  no  longer  holds.  The 

26Recueil,  1905,  p.  757. 

27Recueil,  1911,  p.  289;  Sirey,  1912,  III,  41. 


190       LAW    IN    THE    MODERN    STATE 

attitude  of  the  Court  has  been  well  explained  in  the 
note  of  the  representative  of  the  department  of  justice 
M.  Heilbronner.  "If  a  candidate  has  all  the  qualifi- 
cations demanded  by  law,  can  the  Minister,"  he  asks, 
"exclude  him  from  his  candidacy  on  the  ground  that 
he  belongs  to  a  special  class  of  citizens?"  The  ques- 
tion arose  over  a  candidate  who,  being  a  priest,  had 
been  excluded  from  the  examination  for  a  Fellow- 
ship in  the  University  in  Philosophy.  Though  the 
Council  of  State  upheld  the  decision,  it  was  not  be- 
cause it  held  that  it  could  not  examine  the  mo- 
tives of  the  ministerial  action.  It  was  because,  hav- 
ing examined  them,  it  thought  they- were  legal  and 
tended  to  serve  only  the  adequate  functioning  of  the 
university.  It  pointed  out  that  this  fellowship  im- 
plies not  only  a  university  status  but  also  fitness  to 
teach  in  the  secondary  schools  of  the  state.  v  "In  re- 
fusing," said  the  Court,  "to  allow  the  plaintiff  to  take 
the  examination,  the  Minister  of  Public  Instruction 
has  only  used  powers  conferred  upon  him  by  law;  and 
the  decision  is  therefore  in  no  sense  ultra  vires/' 

The  governmental .  explanation  of  the  decision 
gives  us  its  connotation.  "The  theory  of  discretion 
is  to-day  abandoned.  Discretion  to-day  means  that 
the  minister  can  act  as  he  will,  provided  he  acts  le- 
gally and  for  the  purpose  the  law  is  to  serve."  The 
exclusion  of  a  priest  from  the  examination  fulfilled 
the  purpose  of  a  law  which  restricted  secondary  and 
primary  instruction  to  laymen.  The  note  clearly 
28  Revue  de  Droit  Public,  1912,  p.  453. 


ADMINISTRATIVE    LAW 

points  out  that  the  decision  would  be  different  if 
higher  education  were  concerned,  since  these  posi- 
tions are  based  upon  the  capacity  of  the  candidate. 

In  conclusion  one  or  two  decisions  annulling  the 
action  of  municipalities  for  the  abuse  of  power  may 
be  mentioned.  The  mayor  of  Denin  was  in  the  habit 
of  meeting  his  political  committee  at  a  certain  cab- 
aret. He  dismissed  a  policeman  who  registered  a 
complaint  against  its  landlord.  The  court  annulled 
the  mayor's  decision.29  The  court  has  similarly  an- 
nulled the  mayoral  instructions  derived  from  anti- 
religious  zeal.  In  these  decisions  it  is  possible  to  dis- 
cern a  new  extension  of  this  plea.  Heretofore  the 
plaintiff,  to  be  successful,  had  to  furnish  direct  and 
positive  proof  that  the  official  had  been  actuated  by 
motives  foreign  to  the  service.  In  the  religious  cases 
cited  above  it  seems  to  have  been  sufficient  for  the 
plaintiff  to  establish  that  the  reason  given  by  the  po- 
lice upon  which  mayoral  action  must  be  based,  did 
not  exist  in  fact.  That  does  not  change  in  any  way 
the  nature  of  the  plea  of  abuse  of  power,  but  it  makes 
it  wrider  and  this  extension  enlarges  the  control  of  the 
courts  over  business  administration.30 


VI 

This  evolution,  however,  is  not  yet  complete.     Vio- 
lation may  involve  condemnation  of  the  administra- 

29Recueil,  1900,  p.  617. 

30  Recueil,  1909,  p.  180;  Ibid,  1909,  p.  307 ;  Ibid,  1910,  p.  49; 
Ibid,  1910,  p.  192. 


192       LAW    IN    THE    MODERN    STATE 

tive  acts  by  the  courts ;  but  to  complete  the  control  of 
the  courts  the  private  citizen  must  have  the  means  of 
compelling  the  government  to  execute  the  decision 
of  the  tribunal.  He  must  be  able  to  prevent  the  repe- 
tition of  the  act.  He  must  be  able  to  compel  the  ad- 
ministration to  conform  to  the  verdict  of  the  court, 
to  reinvest,  for  example,  an  official  who  has  been 
illegally  dismissed  when  the  Council  of  State  has  so 
decided.  Theoretically,  there  is  no  doubt  that  he  has 
the  power — theoretically,  the  government  is  subject 
to  the  control  of  the  courts. 

It  must  however  be  admitted  that  this  means  of 
constraint  has  not  yet  been  developed.  "The  ab- 
sence of  this  sanction,"  as  M.  Hauriou  has  very 
rightly  said,31  "has  not  had  much  inconvenience  be- 
cause government  has  made  it  a  point  of  administra- 
tive honor  spontaneously  to  obey."  He  points  out 
how  "under  the  combined  action  of  decentralisation 
and  the  electoral  regime  this  administrative  honor 
no  longer  exists.  The  government  departments  de- 
ceive and  defend  themselves  against  the  courts  which 
embarrass  them  in  their  political  schemes.  .  .  .  This 
bad  faith  is  not  confined  to  the  municipalities;  it  is 
found  also  in  the  prefectures  which  can  no  longer  be 
relied  on  to  call  back  a  municipality  to  legal  paths. 
.  .  .  This  same  bad  will  has  wormed  its  way  into  the 
government  departments.  In  an  admirable  and  just 
phrase  ministers  are  said  to  boycott  the  Council  of 
State.  It  is  not,  of  course,  the  minister  himself  .  .  . 

31Sirey,  1911,  III  121. 


ADMINISTRATIVE    LAW  l$3 

it  is  his  department.  The  department  is  in  revolt 
against  the  embarrassment  caused  by  the  Council  of 
State." 

This  picture  is  perhaps  too  black.  In  most  cases 
the  administration  spontaneously  submits  to  the  will 
of  the  court,  whether  to  obtain  a  note  of  credit  from 
parliament  to  pay  damages,  or  to  reinstate  an  official 
irregularly  suspended  or  dismissed.  There  is,  how- 
ever, sometimes  resistance.  The  temper  of  politics 
makes  itself  felt  with  odious  results.  The  extension 
of  the  courts'  control  provokes  administrative  resist- 
ance. It  is  perhaps  natural  enough;  for  every  new 
social  force  has  to  make  its  way  against  the  conserva- 
tism of  existing  facts.  The  politicalisation  of  the 
government  is  in  reality  only  a  secondary  cause.  The 
fundamental  reason  is  the  reaction  of  new  ideas  upon 
a  situation  which  ambiguity  has  tended  to  make  priv- 
ileged. 

The  Council  of  State  has  so  far  realised  this  that 
its  decisions  often  show  the  effort  to  defeat  a  contin- 
gent administrative  resistance.  It  does  not  of  course 
attempt  to  substitute  itself  for  the  active  executive 
power.  It  corrects  the  irregular  decision  but  it  does 
not  substitute  its  own  decision  for  it.  It  remains  a 
judge  and  not  an  administrator.  When,  for  exam- 
ple, the  prefect  violates  the  law  of  weekly  rest,  it  an- 
nuls the  act  without  according  the  permission  that  the 
law  demands.  It  takes  account  of  a  possible  refusal 
to  obey  the  law  by  the  terms  of  its  decision.  "Send 
X  before  the  prefect  of  the  department  and  give  him 


194       LAW    IN    THE    MODERN    STATE 

the  authorisation  to  which  he  has  the  right  in  law." 

This  formula  of  address  to  the  administration  is 
now  very  frequent  in  the  decisions  of  the  Council, 
particularly  in  annulling  prefectorial  determination 
on  the  weekly  closing  law.  The  Council  has  not  yet 
dared  expressly  to  annul  the  decision  by  which  a  pre- 
fect has  refused  to  enter  upon  a  communal  budget 
some  necessary  expense ;  but  it  has  sent  the  interested 
party  to  the  Minister  of  the  Interior  with  an  injunc- 
tion to  the  latter  to  secure  this  end  directly  from  the 
department.33  This  is  not  real  constraint,  and  it  must 
be  admitted  that  for  the  moment  a  direct  refusal  of 
authority  to  take  account  of  the  decision  cannot  be 
countered  directly  or  indirectly  by  the  courts.  A 
case,  in  itself  unimportant,  is  here  of  interest  because 
it  shows  in  this  connection  how  the  mayor  of  the  little 
commune  may  hold  in  check  the  highest  administra- 
tive council  of  the  country.  By  Art.  102  of  the  Act 
of  April  5,  1884,  a  mayor  cannot  dismiss  a  rural  po- 
liceman, but  he  can  suspend  him  for  a  month.  The 
mayor  of  Cotignac,  to  evade  the  law,  suspended  a 
policeman  for  a  month  and  renewed  the  suspension 
every  month.  This  was  of  course  equivalent  to  a 
dismissal,  and  a  decision  of  1909  annulled  the 
mayoral  decrees.  The  mayor  took  no  account  of  the 
annulment  and  continued  his  suspension.  In  1910 
the  Council  of  State  annulled  seven  new  decrees  by 
the  mayor.  This  could  obviously  continue  without 

32Recueil,  1906,  p.  880;  Sirey,  1907,  III,  17. 
33Recueil,  1908,  p.  689;  Sirey,  1909,  III,  129, 


ADMINISTRATIVE    LAW  1 9$ 

limit;  and  if  the  minister  did  not  dismiss  the  mayor 
the  courts  would  have  no  means  of  forcing  their  con- 
trol.34 

Here  is  the  real  gap  in  our  public  law.  The  only 
way  in  which  it  can  be  filled  is  by  enforcing  the  per- 
sonal responsibility  of  the  civil  servant.  It  is  the  ab- 
sence of  that  responsibility  that  deprives  the  decision 
of  the  court  of  its  effect.35  It  will  be  seen  below  how 
theory  and  practise  are  making  a  subtle  but  precise 
distinction  between  acts  of  function  and  private  acts 
in  which  the  latter  will  involve  the  personal  respon- 
sibility of  the  official.  An  act  is  personal  when  the 
motive  of  the  official's  act  or  his  refusal  to  act  is  un- 
connected with  the  operation  of  his  post.  Clearly  a 
civil  servant  who  knowingly  refuses  to  obey  the  de- 
cision of  a  court  is  acting  outside  the  boundaries  of 
his  service.  Every  judgment  is  presumed  to  con- 
form to  the  law.  Every  law  is  founded  on  the  inter- 
ests of  the  public  service.  To  show  contempt  of  the 
decision  of  the  court  is  to  show  knowingly  a  contempt 
of  the  department  of  the  service  and  so  to  commit  a 
personal  fault. 

There  is  no  doubt  that  the  responsibility  of  a  recal- 
citrant official  will  be  secured  in  the  future.  The 
Cotignac  policeman  could  certainly  have  won  a  per- 
sonal action  against  the  mayor;  but  the  procedure,  as 

"Recueil,  1909,  p.  727,  and  1910,  p.  606;  Sirey,  1911,  III, 
121. 

35  [It  is  exactly  here  that  Professor  Dicey,  of  course,  finds  the 
superiority  of  the  English  rule  of  law.] 


196       LAW    IN    THE    MODERN    STATE 

I  shall  show  below,  is  long  and  complicated  and 
costly.  The  ordinary  courts  try  these  cases  and  ap- 
peal can  be  and  always  is  taken  to  the  highest  tribu- 
nals. 

That  makes  the  petitioner  hesitate.  He  is  mis- 
taken because  he  is  bound  to  succeed.  But  he  would 
perhaps  hesitate  less  if  he  could  go  to  the  Council  of 
State  and  if  his  plea,  like  the  plea  of  ultra  vires,  in- 
volved no  other  expense  than  that  of  registration. 
The  Council  very  naturally  penalises  any  civil  serv- 
ant who  neglected  its  decree  of  annulment  or  penal- 
isation. This  path,  it  is  possible,  will  be  opened  up 
in  the  future.38 

36  Cf.  Berthelemy,  L'Obligation  de  faire  en  Droit  Public,  1912, 
p.  51  If. 


CHAPTER   VII 
RESPONSIBILITY 

\ls  THE  state  responsible  for  acts  done  in  its  name? 
Merely  to  ask  the  question  is  to  reveal  a  profound 
change  in  public  law.  The  men  of  the  Revolution 
would  have  been  astonished  at  the  demand.  The 
Declaration  of  Rights,  Constitutions,  the  statutes  of 
the  Revolutionary  period — in  none  of  these  is  there 
a  single  text  which  makes  any  allusion  to  a  general 
responsibility  on  the  part  of  the  state.  There  is  af- 
firmation, of  course,  that  the  individual  has  the  right 
to  certain  guarantees  against  arbitrary  power.  They 
are  found,  however,  in  the  separation  of  the  powers, 
in  the  divisions  of  functions,  in  the  responsibility  of 
officials.  No  one  thought  that  they  could  be  found, 
and  are  essentially  found,  in  the  responsibility  of  the 
state.  To-day  a  highly  sanctioned  and  widely  cast 
state  responsibility  is  regarded  as  the  best  safeguard 
of  individual  freedom.  We  have  to  trace  the  stages 
of  this  evolution. 


The  texts  which  consecrate  the  responsibility  of 
officials  are  very  numerous.     The  principle  was  in 

197 


198       LAW    IN    THE    MODERN    STATE 

the  Declaration  of  1789:  "Society  has  the  right  to 
demand  responsibility  for  administration  from  every 
public  official."  In  the  preamble  to  the  third  title 
of  the  Constitution  of  1791,  it  is  stated  that  "the  ex- 
ecutive power  is  delegated  to  the  king  to  be  exer- 
cised under  his  authority  by  his  ministers  and  other 
responsible  agents."  The  same  principle  is  quite 
clearly  formulated  in  1793  an(i  tne  Year  HI; *  and  it 
was  considered  so  fundamental  and  supreme  that 
when,  in  the  year  VIII,  it  was  desired  to  constitute 
a  central  government  so  strong  as  not  to  be  subject  to 
electoral  and  democratic  influence,  the  responsibility 
of  public  officials  still  remained  untouched.  The 
principle  was  formulated  with  the  same  rigidity;  but 
the  Council  of  State  had  to  give  governmental  au- 
thorisation to  the  prosecution  of  a  civil  servant.  This 
is  the  famous  article  75  of  the  Constitution  of  the  year 
VIII.  "Government  officials  other  than  ministers 
of  state  can  be  prosecuted  for  acts  relative  to  their 
functions  only  in  virtue  of  a  decree  of  the  Council  of 
State."  When  in  1830  the  Charter  of  1814  was  re- 
vised in  a  sense  deemed  liberal,  a  statute  was  an- 
nounced "on  the  responsibility  of  ministers  and  other 
agents  of  the  executive  power."  The  statute,  how- 
ever, was  promulgated  without  being  passed,  al- 
though long  discussions  filled  the  entire  session  of 

1  Declaration  of  1793,  arts.  24  and  31;  Constit.  of  1793,  -arts. 
55,  71-3,  83;  Declaration  of  the  Year,  III,  art.  22;  Constit.  of 
the  Year,  III,  arts.  200,  201,  203. 


RESPONSIBILITY  199 

1835.  In  1848  the  principle  was  formulated  in  a 
still  more  wide  and  general  fashion.  "The  Presi- 
dent of  the  Republic  and  ministers  and  officials  exer- 
cising a  part  of  sovereign  power  are  responsible  in  so 
far  as  each  is  concerned  for  all  acts  of  government 
and  of  administration." 

No  text  since  1789  makes  the  slightest  allusion  to 
a  general  responsibility  of  the  state.  That  does  not 
mean  to  say  that  responsibility  was  outside  men's 
thoughts;  for  many  texts  affirm  the  responsibility  of 
all  public  officials.  No  one  thought  of  making  the 
state  responsible,  because,  for  the  legislator,  it  was  an 
evident  and  tangible  dogma  that  the  state  was  not 
and  could  not  be  responsible. 

That  was  logical  enough.  Close  analysis  suggests 
that  sovereignty  and  responsibility  are  mutually  ex- 
clusive notions.  Sovereignty,  of  course,  can  be  lim- 
ited. In  the  traditional  theory  of  public  law  it  limits 
and  reciprocally  is  limited  by  the  right  of  the  indi- 
vidual. These  reciprocal  limitations  are  regulated, 
and  can  only  be  regulated,  by  statute  which,  express- 
ing the  general  will,  is  derived  from  sovereignty  it- 
self and  forms  the  national  law.  At  bottom,  there- 
fore, the  sovereign  state  creates  law  and  the  idea  of 
responsibility  is  thus  excluded.  For,  in  the  general 
acceptance,  irresponsibility  implies  a  violation  of 
law.  That  which  creates  law  by  its  sovereign  will 
clearly  cannot  violate  it.  Just  as  in  an  absolute  mon- 
archy the  king  can  do  no  wrong,  and  is  therefore  ir- 


200       LAW    IN    THE    MODERN    STATE 

responsible,  so  the  democratic  state,  which  is  no  more 
than  the  nation  sovereignly  organised,  can  do  no 
wrong  and  escapes  responsibility. 
/  The  sovereign  state  cannot  be  responsible  because 
of  statutes,  because  statutes  are  the  expression  of  sov- 
ereignty. Nor  can  it  be  responsible  for  executive, 
judicial,  or  administrative  acts.  If  they  conform  to 
statute  there  is  no  question  of  responsibility  at  all. 
If  they  are  contrary  to  it  the  question  does  not  relate 
to  the  state  which  has  willed  that  the  statute  should 
be  executed.  The  violation  is  that  of  the  official  who 
substitutes  his  own  will  for  the  will  of  the  sovereign 
state.  It  is  the  official,  therefore,  who  is  alone  re- 
sponsible.^ 

It  is  very  logical,  so  logical  that  some  radical 
writers  of  authority  have  not  been  able  to  escape  from 
the  obsession  that  sovereignty  imposes.  Forced  to 
recognise  that  the  state  is  sometimes  responsible,  they 
declare  that  it  cannot  be  responsible  when  it  acts  as 
a  sovereign  power  unless  its  statute  has  so  ordered. 
This  is  the  attitude  of  M.  Berthelemy.  M.  Teissier, 
in  an  able  work,2  is  less  definite ;  but  his  mind  is  still 
dominated  by  the  idea  that  where  the  state  shows 
itself  in  its  sovereign  capacity  the  question  of  respon- 
sibility cannot  be  raised.  "Statutes,"  he  writes,  "are 
the  highest  example  of  sovereign  acts;  and  without 
special  provision  the  damage  they  may  cause  to  pri- 
vate citizens  can  give  rise  to  no  action  against  the 

2  La  Responsabilite  de  la  Puissance  Publique,  1908. 


RESPONSIBILITY  2OI 

state  before  any  court,  administrative  or  other,  on  the 
ground  of  responsibility." 

Clearly,  sovereignty  and  irresponsibility  are  two 
interdependent  ideas.  That  is  clearly  affirmed  where 
state  responsibility  is  admitted,  save  where  it  acts  in 
its  sovereign  capacity.  That  is  already  to  admit  that 
the  principle  of  irresponsibility  has  its  limits. 
Where  is  the  line  to  be  drawn?  How  can  we  tell 
when  we  are  dealing  with  a  sovereign  act  and  when 
not?  If  the  state  is  by  definition  a  sovereign  person, 
it  must  always  be  a  sovereign  person,  and  if  sov- 
ereignty implies  irresponsibility,  it  must  be  irrespon- 
sible also.  It  can  hardly  have  garments  suited  to 
every  sort  of  occasion. 

It  thus  follows  that  if  it  is  admitted  that  the  state 
may  on  occasion  be  responsible,  it  may  on  occasion 
be  non-sovereign;  but  if  on  occasion  it  may  be  non- 
sovereign,  it  is  in  fact  never  sovereign.  I  shall  show 
later  that  there  is  to-day  no  aspect  of  state-activity 
which  does  not  raise  the  question  of  responsibility  and 
answer  it  in  the  affirmative.  And  the  need  for  that 
affirmation  grows  each  day  greater. 

It  is  useful  to  remember  that  even  in  the  highly 
articulated  imperialist  system  of  law  there  was  one 
lacuna.  The  Declaration  of  the  Rights  of  Man  had 
proclaimed  private  property  inviolate,  it  had  decided 
that  "no  one  can  be  deprived  of  it  save  when  a  legally 
declared  public  necessity  demands  it  and  then  only 
on  condition  of  fair  and  pre-arranged  compensa- 


202       LAW    IN    THE    MODERN    STATE 

tion."  3  Here  was  a  clear  attack  on  the  principle  of 
sovereign  irresponsibility  of  the  state.  It  is  easily 
explained.  The  authors  of  the  Declaration  of  Rights 
loved  the  state  but  were  still  more  lovers  of  the  soil 
they  owned.  They  admitted  that  sovereignty  was  a 
dogma;  but  the  rights  of  property  were  a  dogma  not 
less  fundamental.  The  right  of  property  is  an  indi- 
vidual sovereignty;  when  it  conflicts  with  that  of  the 
state  they  had  to  decide  which  would  be  successful, 
and  they  decided  in  favour  of  the  right  of  property. 

The  fact  that  every  member  of  the  Constituent  As- 
sembly was  in  some  degree  a  landed  proprietor  is  in 
part  at  least  the  explanation  of  this  attitude.  When 
private  property  is  taken,  the  financial  responsibility 
of  the  state  is  recognised.  A  little  later  the  whole 
procedure  was  organised  to  secure  expropriation. 
The  principle  had  long  been  favoured  by  the  courts 
which  gave  compensation  to  the  landowners  for  every 
direct  expropriation. 

It  was  approved  by  administrative  jurisprudence, 
which  gave  liberal  compensation  for  damage  to  pri- 
vate property  caused  by  the  erection  of  public  works ; 
and  that  where  no  illegality  or  fault  could  be  argued. 
This  attitude  was  not  based  on  the  idea  of  general 
state-responsibility  but  on  the  inviolability  of  private 
property.  It  nevertheless  opened  an  avenue  to  that 
modern  theory  which  tends  to  recognise  the  respon- 
sibility of  the  state  wherever  its  intervention,  however 
legal  or  faultless,  imposes  upon  an  individual  or 

3  Art.  17. 


RESPONSIBILITY  203 

group  a  burden  heavier  than  it  imposes  upon  the 
community  at  large. 


II 


Traditional  theory  makes  the  notion  of  responsi- 
bility accompanied  always  by  the  idea  of  fault.  A 
rule,  that  is  to  say,  is  violated ;  if  it  is  a  moral  rule,  it 
implies  a  moral  responsibility;  if  a  rule  of  law,  a  le- 
gal responsibility.  The  ideas  of  responsibility  and 
of  fault  demand,  as  is  clear,  the  existence  of  a  con- 
sciously willing  person.  Conscious  violation  of  a 
rule  of  law  by  a  free  will  involves  the  responsibility 
of  the  person  endowed  with  that  will.  Such  is  the 
metaphysic  of  the  ordinary  concept  of  responsibility. 
Clearly  it  makes  the  problem  one  of  ascription. 

It  was  so  understood  in  the  individualist  system  of 
the  penal  and  civil  codes  of  France.  Penal  infrac- 
tion is  the  conscious  violation  of  the  penal  law  by  a 
free  will,  and  penal  responsibility  is  incurred  by  the 
person  to  whom  this  violation  is  to  be  imputed.  Ar- 
ticle 1382  of  the  Code  Napoleon  formulates  the  prin- 
ciple of  civil  responsibility.  Moreover,  every  per- 
son is  declared  responsible  not  only  for  the  damage 
caused  by  his  own  acts  but  also  for  that  of  persons  for 
whom  he  ought  to  answer  or  for  persons  whom  he 
had  under  his  keeping;  the  reason  for  which  is  that 
he  is  presumed  to  be  at  fault  when  there  is  bad  choice 
or  bad  surveillance. 

To  pose  the  problem  of  state  responsibility  in  these 


204       LAW    IN    THE    MODERN    STATE 

terms  is  to  picture  a  state  endowed  with  a  free  and 
conscious  will  which  can  commit  a  fault  by  violating 
a  legal  rule  and  is  responsible  when  that  violation  can 
be  brought  home  to  it.  An  important  school  of  jur- 
ists accepted  this  conception.  Upon  it  has  been 
erected  an  ingeniously  subtle  doctrine  of  which  the 
value  is  only  present  by  reason  of  its  skilful  logic.  It 
is  urged  that  the  state  is  a  person  and  the  governors 
are  its  organs;  as  such  they  have  no  personality  dis- 
tinct from  that  of  the  state  any  more  than  the  organs 
of  an  individual  have  a  personality  distinct  from  it. 
The  state  wills  and  acts  by  its  organs ;  when  they  will 
and  act  it  is  the  state  which  wills  and  acts.  When 
they  are  at  fault  the  fault  is  committed  by  and  im- 
puted to  the  state.  The  state  is  therefore  directly  and 
personally  responsible  for  it. 

This  theory  was  created  by  Gierke  for  the  cor- 
porate person  in  general  and  has  been  developed  and 
applied  to  the  state  by  Jellinek.  It  has  been,  with 
some  modifications,  adopted  in  France  by  two  jurists 
whose  authority  is  deservedly  great.4  Nevertheless, 
it  is  no  more  than  an  ingenious  fiction.  It  is  neces- 
sary to  reconcile  the  responsibility  of  the  state  with  a 
legal  system,  where  there  can  be  responsibility  only 

4  Gierke,  Genossenschaftstheorie  (1887);  Jellinek,  Allgemeine 
Staatslehre  (1905)  ;  Michoud,  Theorie  de  la  Personnalite  Morale 
(1906-9);  Hauriou,  Principes  de  Droit  Public  (1910),  p.  659. 
[Maitland  in  his  introduction  to  Gierke 's  Political  Theories  of  the 
Middle  Ages,  and  in  his  paper  on  Legal  Personality  and  Moral 
Personality  in  Vol.  Ill  of  his  collected  papers,  has  also  adopted 
this  view.]  For  criticism,  cf.  Duguit,  Traite,  I,  307, 


RESPONSIBILITY 

where  there  is  conscious  and  willing  personality. 

Now  the  facts  to-day,  as  numerous  decisions  make 
clear,  in  no  wise  demand  that  the  responsibility  of  the 
state  should  be  based  upon  the  idea  of  fault.  Tradi- 
tion, doubtless^  makes  us  still  speak  of  state-fault,  but 
in  reality  this  only  means  that  it  is  the  funds  of  the 
state  which  pay  for  the  damage  involved  in  the  oper- 
ation of  its  functions.  We  ought  perhaps  to  speak  of 
another  term  rather  than  responsibility,  but  since  that  3 
term  does  not  yet  exist  we  must  do  the  best  we  can 
with  what  we  have.  The  sense  and  bearing  of  the  ^ 
term  can  be  given  precision. 

It  is  not  here  urged  that  liability  for  fault  has  dis-       < 
appeared  or  ought  soon  to  disappear  from  modern       ^ 
law.     In  the  relation  of  individuals  to  individuals 
there  can  be  no  other  idea.     But  the  notion  of  fault 
is  out  of  place  where  we  deal  with  the  interrelation 
of  groups  with  groups;  or  groups  with  individuals.        ; 
When  we  deal  with  an  action  which  is  individual,  by 
reason  of  the  will  which  sets  it  in  motion  or  the  end        ' 
that  it  pursues,  there  can  be  an  individual  fault  and      *J 
as  a  rule,  if  not  always,  it  is  upon  this  fault  that  li-     V 
ability  is  founded.5     But  in  corporate  activity  this      * 
is  not  the  case.    The  act  is  doubtless  put  into  motionl? } 
by  individual  wills,  but  the  end  is  collective.     If  af 
fault  is  committed  by  an  agent  of  thiscoTfectivity,  it 
is  not  imputable  to  that  agent  since  it  is  for  a  collec- 
tive end  that  it  has  been  committed.     Nor  is  it  im- 

5  [C/.  Mr.  Justice  Holmes,  two  papers  on  Agency,  in  Vols.  IV 
and  V  of  the  Harvard  Law  Review,] 


206       LAW    IN    THE    MODERN    STATE 

putable  to  the  collectivity  since  the  latter  outside  the 
imagination  of  lawyers  has  no  personal  existence. 
The  ideas  of  fault  and  imputability  are  thus  elim- 
inated.6 

There  thus  emerges  a  new  conception  to  which  is 
attached  the  whole  modern  law  of  state  responsibil- 
ity. To  start  a  collective  activity,  that  is  to  say  an 
activity  which  has  in  view  a  collective  end,  affects  the 
funds  of  the  collecting  when  it  occasions  prejudice  to 
a  group  or  individual.  "Social  life  and  thus  legal 
life,"  as  I  have  elsewhere  written,7  "is  the  product  of 
a  division  of  labour  between  individual  and  corporate 
activity.  Groups  have  no  wills  and  cannot  therefore 
be  responsible  persons.  But  group  activity  is  none 
the  less  an  important  element  of  social  activity.  The 
task  it  performs  doubtless  benefits  the  whole  of  so- 
ciety, but  more  particularly  it  is  the  members  of  a 
group  who  are  benefited.  If  they  so  benefit,  it  is  only 
fair  that  they  should  bear  the  risk  which  attaches  to 
the  contact  of  their  acts  with  other  individuals  or 
groups." 

State  activity  emanates  from  individual  wills,  but 
it  is  essentially  collective  in  its  end ;  which  is  the  or- 
ganisation and  management  of  public  services.  It 
follows  that  if  the  organisation  or  management  of 
such  a  service  should  particularly  prejudice  a  group 
or  an  individual,  the  funds  of  that  service  should  re- 

6  [For  another  interpretation,  cf.  Laski,  The  Basis  of  Vicarious 
Liability,  in  the  Yale  Law  Journal  for  November,  1916.] 

7  Transformations  du  Droit  Prive  (1912),  p.  140. 


RESPONSIBILITY  207 

pair  the  damage  so  long  as  the  relation  of  cause  and 
effect  between  act  and  damage  is  traceable.  If  the 
service  is  centralised  it  falls  upon  the  general  funds 
of  the  state. 

Such  is  the  single  idea  upon  which  is  based  the 
whole  law  of  state  responsibility.  It  has  already  a 
rich  jurisprudence,  though  it  is  only  at  the  beginning 
of  its  evolution;  even  though  it  is  sometimes  falsi- 
fied by  the  persistence  of  the  idea  of  fault.  It  im- 
plies eo  nomine  the  elimination  of  the  idea  of  sov- 
ereignty. When  responsibility  is  attached  directly 
and  exclusively, to  the  fact  of  service  it  entails  the 
same  consequences  from  whatever  source  it  emanates. 
The  idea  must  be  thrown  into  such  relief  as  makes 
plain  an  evolution  of  public  law  destructive  of  the 
traditional  notion  of  sovereign  power. 


Ill 


Ancient  tradition,  and  a  habit  of  terminology  that 
has  become  inveterate,  make  many  thinkers  of  emi- 
nence still  subject  to  their  faith  in  the  sovereignty  of 
Parliament.  I  have  already  pointed  out8  that  the 
persistence  of  this  idea  has  prevented  the  plea  of 
ultra  vires  being  valid  against  acts  of  parliament. 
Its  members,  indeed,  love  to  pose  as  interpreters  of 
the  national  sovereign  will.  These  are  no  more  than 
words.  But  everywhere,  and  in  France  in  particu- 
lar, words  are  powerful  things ;  and  it  is  these  empty 

8  Supra,  chap,  iii,  §  iv ;  chap,  vi,  §  iii. 


208       LAW    IN    THE    MODERN    STATE 

formulae  which  make  the  courts  so  greatly  hesitate 
to  recognise  the  responsibility  of  the  state  for  acts  of 
parliament.  Yet  to-day  the  question  is  clearly  posed. 
It  is  discussed  everywhere:  in  the  chambers,  in  the 
courts,  in  the  market  place.  The  significance  of 
that  discussion  is  obvious. 

Let  us  suppose  a  private  act  of  parliament  voted 
and  promulgated  in  the  form  of  statute.  It  is  a  stat- 
ute of  a  formal  kind.  But  if,  as  has  been  so  long  and 
so  unhesitatingly  affirmed,  parliament  is  invested 
with  a  sovereignty  which  excludes  the  notion  of  state 
responsibility,  it  must  be  so  whether  its  decision  is 
individual  or  whether  it  makes  a  general  regulation 
which  is  a  statute  in  the  material  sense.  To-day, 
however,  it  is  admitted  that  a  private  decision  of  par- 
liament may  in  certain  cases  involve  the  responsibil- 
ity of  the  state. 

I  have  already  mentioned  the  decisions  of  the 
Council  of  State  which  ordered  the  state  to  pay  com- 
pensation to  certain  ecclesiastical  institutions  in  Savoy. 
They  had  been  injured  by  the  refusal,  in  accordance 
with  act  of  parliament  of  the  grant  promised  to  them 
in  1860  by  the  French  government  in  return  for  the 
surrender  of  certain  rent  charges.9  There  is,  of 
course,  no  question  here  of  a  formal  statute ;  but  we 
have  a  decision  of  the  two  chambers  on  the  budget. 
If  parliament  is  truly  sovereign  its  sovereignty  must 
be  manifest  in  such  a  note  not  less  than  in  a  formal 
law.  I  have  mentioned  also  the  protest  of  M.  Mil- 

9Recueil,  1896,  p.  660;  Ibid,  1904,  p.  533. 


RESPONSIBILITY  209 

lerand,  then  Minister  of  Public  Works,  in  the  Cham- 
ber. He  was  replying  to  a  speech  of  M.  Jaures,  who 
urged  that  if  the  state  was  embarrassed  in  its  negotia- 
tions with  the  Western  Railway  Company  by  the 
agreement  of  1883  it  had  only  to  pass  a  statute  which 
would  obliterate  the  obligations  incurred.  The 
Chamber  refused  to  follow  the  policy  advocated  by 
M.  Jaures. 

In  both  these  cases  we  have  of  course  contract;  but 
when  sovereignty  is  concerned  and  when  parliament 
is  the  living  incarnation  of  sovereignty,  contract  is 
unimportant.  No  contract  can  make  the  state  re- 
sponsible. If  we  say  with  M.  Laferriere  "that  it  is 
a  matter  of  principle  that  the  damage  caused  to  pri- 
vate citizens  by  legislative  measures  gives  them  no 
right  to  compensation,"  parliamentary  action  would 
then  imply  the  irresponsibility  of  the  state. 

Let  us  now  suppose  that  parliament  passes  a  mate- 
rial and  formal  statute;  it  passes  a  general  regulation 
which  is  promulgated  by  the  parliament.  Does  such 
an  act  involve  responsibility?  Merely  to  ask  the 
question  shows  the  profound  change  in  our  concep- 
tions. 

But  the  question  is  asked,  and  parliament  must  an- 
swer it. '  When  a  statute  is  passed  of  which  the  ap- 
plication will  prejudice  the  interests  of  a  certain  class 
of  citizens,  ought  the  legislator  to  make  compensa- 
tion a  principle  of  the  statute?  The  question  has 
been  eagerly  discussed  in  France  and  abroad.  It  was 
discussed  in  France  in  relation  to  the  statute  of  1909 


210       LAW    IN    THE    MODERN    STATE 

forbidding  the  use  of  white  lead;  in  Switzerland  in 
relation  to  the  Federal  law  of  1910  forbidding  the 
use  of  a.bsinthe;  in  Uruguay  and  Italy  in  1911  in  re- 
lation to  laws  making  insurance  a  public  monopoly. 
The  question  is  not  one^of  legislative  morality  but  of 
right;  it  is  in  the  name  of  a  principle  of  right  supe- 
rior to  their  powers  that  the  parliaments  ask  if  they 
ought  not  to  compensate  by  statute  those  who  are  spe- 
cially harmed  by  their  action.  Thus  the  faith  of 
legislatures  in  their  own  sovereignty  is  seriously 
shaken.  That  is  a  symptom  of  importance.  We  are 
to-day  in  a  period  of  transition.  The  new  law  is  in 
process  of  elaboration ;  but  we  can  already  see  the  ele- 
ments of  the  solution  it  will  offer.  If  the  new  statute 
should  prohibit  certain  acts  till  then  lawful,  because 
it  considers  them  contrary  and  ideal  right,  it  ought 
not  to  compensate  those  harmed  by  its  prohibition. 
Legislators  only  formulate  a  legal  principle  in  the 
interest  of  a  public  service;  the  national  exchequer 
ought  not  therefore  to  bear  the  burden  of  a  baseless 
responsibility. 

An  answer  has  been  made  to  this  argument.  So 
far,  it  has  been  said,  what  was  done  was  done  legally 
and  the  new  law  prohibits  in  the  general  interest; 
surely,  therefore,  it  is  logical  that  the  state  should  re- 
pair the  special  prejudice  occasioned.  Such  an  ar- 
gument should  not  prevail.  Assuredly  the  notion  of 
sovereignty,  as  this  book  attempts  to  show,  no  longer 
lies  at  the  basis  of  public  law.  But  a  material  stat- 
ute is  none  the  less  the  formulation  of  a  rule  of  right 


RESPONSIBILITY  211 

"Law,"  as  I  wrote  some  years  ago,10  "is  not  a  mass  of 
absolute  and  unchanging  principles,  but  on  the  con- 
trary a  collection  of  rules  which  vary  with  time.  It 
follows  that  a  situation  may  at  one  time  be  legal  even 
over  a  long  space  of  time,  but  not  always  legal. 
When  a  new  statute  abolishes  it  those  who  have  prof- 
ited by  the  earlier  legislation  cannot  complain  of  the 
change  because  the  new  law  only  registers  the  evolu- 
tion of  the  notion  of  right." 

After  long  discussion,  and  several  contradictory 
notes  in  the  Chamber  and  in  the  Senate,  the  Act  of 
1909,  forbidding  the  use  of  white  lead  in  the  manu- 
facture of  paint,  refused  an  indemnity  to  the  makers 
of  that  product.  In  the  long  discussion  in  the  Senate 
on  the  question  of  compensation  M.  Viviani,  then 
Minister  of  Works,  pointed  out  that  the  question  was 
not  of  the  expropriation  of  an  industry  but  simply  of 
the  prohibition  of  a  material  recognised  by  science  asj 
essentially  harmful.  The  employment  then  had  to 
be  forbidden  by  law.  The  minister  did  not  invoke 
the  supposed  sovereignty  of  parliament.  He  sens- 
ibly observed  that  similar  laws  in  Germany  and  Aus- 
tria had  given  no  compensation.  A  compromise  was 
finally  arrived  at  between  the  Chamber  and  the  Sen-j 
ate  by  which  the  indemnity  was  granted  but  the  pro- 
hibition was  not  to  become  effective  until  after  a  pe-t 
riod  of  five  years. 

In  the  next  year  a  statute  was  passed  which  prohib- 
ited the  sale  of  baby  comforters.  Their  use  had  been, 

l°Traite  (1911),  I,  164. 


212       LAW    IN    THE    MODERN    STATE 

denounced  by  doctors  for  several  years  as  one  of  the 
principal  causes  of  infant  mortality.  The  question 
of  compensation  was  not  even  raised.  "We  must 
make,"  said  M.  Durand,  the  Reporter  to  the  Cham- 
ber, "a  clear  distinction  between  expropriation  and 
the  substitution  of  a  state  industry  for  one  operated 
by  private  citizens,  in  which  case  compensation  is 
due,  and  between  industries  which  the  state  prohibits 
simply  in  the  general  interest  which  in  this  case  is 
the  protection  of  the  race." 

Parliament  is  actually  considering  bills  which  pro- 
hibit the  manufacture  and  sale  of  absinthe  which  is 
incontestably  harmful  and  an  active  agent  in  pro- 
moting alcoholism.  If,  as  one  must  hope,  these  bills 
succeed,  there  is  no  reason  to  reserve  compensation 
for  the  benefit  of  the  manufacturers.  They  are  pub- 
lic poisoners  whom  the  law  ought,  as  soon  as  possible, 
to  prohibit  from  so  culpable  an  enterprise. 

It  ought,  however,  to  be  pointed  out  that  a  similar 
Swiss  act  of  1910  has  reserved  compensation  in  the 
following  terms:  "For  the  sake  of  fairness,  partial 
compensation  is  assured  to  manufacturers  and  em- 
ployers whose  interests  are  directly  and  sensibly 
harmed  by  the  prohibition  of  absinthe."  This  for- 
mula shows  that  the  Swiss  legislature  was  not  apply- 
ing a  general  principle,  but,  out  of  fairness,  granting 
exceptional  conditions. 

A  statute,  however,  ought  always  to  reserve  com- 
pensation to  persons  particularly  prejudiced  when  it 
prohibits,  not  because  damage  is  done,  but  because 


RESPONSIBILITY  213 

the  public  organisation  of  the  industry  is  intended. 
It  may  then  be  truly  urged  that  certain  persons  are 
unduly  burdened  and  deserve  compensation  from  the 
national  exchequer.  Legislation  commits  no  fault  in 
substituting  public  for  private  enterprise,  but  so  long 
as  the  private  enterprise  was  not  harmful  it  ought  not 
to  suffer  by  the  process. 

French  legislation  has  several  times  applied  this 
idea.  Compensation  was  granted  to  the  manufac- 
turers of  matches  when  in  1872  that  trade  was  made  a 
public  monopoly.  The  statute  of  1904  on  employ- 
ment bureaux  states  in  its  first  article  that  the  public 
bureaux  shall  receive  just  compensation  before  sup- 
pression. The  Italian  Act  of  1912  which  created  a 
National  Institute  of  Life  Insurance  refused,  how- 
ever, any  compensation  to  persons  or  companies  en- 
gaged in  this  enterprise.  They  were  not  however 
immediately  suppressed  but  allowed  under  certain 
conditions  to  continue  their  operations  for  ten  years.11 

IV 

The  principle  of  compensation  is  thus"atsent  from 
the  statutes.  Can  the  courts  grant  compensation  to 
persons  particularly  prejudiced  by  the  application  of 
a  new  law?  Clearly  the  question  does  not  arise 
where  the  statute  prohibits  acts  or  adjusts  situations 

11  Jeze,  Revue  de  Droit  Public,  1912,  p.  433.  The  text  of  the 
Italian  Law  is  in  the  Bulletin  de  Statistique  et  de  legislation  com- 
paree,  1912,  p.  538.  [For  the  actual  history  of  the  Italian  law, 
tf.  Ferrero,  Europe's  Fateful  Hour  (1918),  p.  140f.] 


214       LAW    IN    THE    MODERN    STATE 

which  are  regarded  as  contrary  to  the  public  interest. 
But  the  question  does  most  pressingly  arise  either 
where  an  industry  becomes  a  state  monopoly,  or 
where  a  public  service  is  so  changed  as  to  lay  heavy 
burdens  on  some  particular  class  in  the  community. 

For  a  long  time  the  courts  did  not  hesitate  to  re- 
fuse all  compensation  in  such  cases.  On  the  ground 
that  a  statute,  because  it  originates  from  parliament, 
is  an  act  of  sovereignty,  they  held  that  the  responsi- 
bility of  the  state  was  not  involved.  The  leading 
case  on  this  subject  was  the  Du  Chatellier  decision  of 
the  Council  of  State  in  1838,  which  refused  all  com- 
pensation to  manufacturers  involved  in  the  Act  of 
1835.  This  act,  for  fixed  purposes,  prohibited  the 
manufacture  of  certain  tobacco,  and  the  court  held 
"that  the  state  cannot  be  held  responsible  for  the  con- 
sequences of  statutes  which  prohibit  certain  indus- 
tries in  the  general  interest."  The  court  gave  a  sim- 
ilar decision  in  1852  in  the  Ferrier  case  and  in  1879 
in  the  Goupy  case.  All  compensation  was  refused 
even  to  those  whose  relation  to  the  state  was  contrac- 
tual and  whose  obligation  became  heavier  as  the  re- 
sult of  new  statutes.  In  the  Barbe  case  of  1883  it 
held  that  a  contractor  to  the  Ministry  of  War  had  no 
right  to  any  compensation  where  a  new  tax  was  put 
on  dynamite.  These  decisions  aroused  no  discussion 
and  received  unanimous  approval  from  lawyers. 

To-day  this  is  no  longer  the  case;  or  at  least  much 
discussion  will  be  necessary  to  make  it  the  case.  It  is 
true  that  the  Council  of  State,  since  the  case  cited, 


RESPONSIBILITY  215 

has  not  yet  had  to  deal  with  one  in  which  a  private 
citizen,  unbound  to  the  state  by  any  previous  and  spe- 
cial legal  relation,  asks  compensation  for  the  preju- 
dice caused  by  a  new  statute  which,  for  public  pur- 
poses, prohibits  some  business  in  no  sense  contrary  to 
the  public  interest.  But  several  times  during  the  last 
few  years  the  Council  of  State  has  dealt  with  cases  in 
which  a  private  citizen,  who  had  contracted  with  the 
state,  asked  compensation  for  some  unnecessary  cost 
due  to  statute. 

It  is  well  settled  that  the  state  cannot  by  a  private 
act  change  a  contractual  situation.  But  where  a  ma- 
terial statute  has  been  passed,  a  general  regulation  of 
an  entirely  personal  character;  where  this  statute  in 
no  sense  modifies  the  contractual  situation  but  leaves 
untouched  the  existing  obligations ;  when  to  execute 
them  new  and  unexpected  costs  are  incurred;  does 
the  state  owe  compensation?  For  thirty  years  the 
question  was  not  raised.  To-day  it  arouses  vehement 
discussion. 

As  early  as  1903,  as  the  form  of  the  decision  shows, 
the  Council  of  State  had,  only  after  much  hesitation, 
refused  compensation  to  the  referees  of  prison  labour 
who  invoked  the  injury  they  had  suffered  by  the  stat- 
utes of  1885  on  conditional  liberation  of  1891  on  in- 
crease or  diminution  of  penalties  and  of  1892  on 
preventive  imprisonment.12  This  hesitation  is  still 
more  clear  in  the  Noire  and  Baysac  case,  where  a 
state  contractor  claimed  damages  because  the  Work 

l2Recueil,  1903,  p.  306, 


2l6       LAW    IN    THE    MODERN    STATE 

Accident  Laws  of  1898  increased  the  burdens  of  his 
obligations.13  M.  Tardieu,  then  government  coun- 
sel, wrote  a  long  and  learned  brief  tending,  not  with- 
out hesitation,  to  reject  the  demand  because  of  the 
entirely  impersonal  character  of  the  statute;  and  the 
Council  of  State  decided  in  similar  fashion.  The 
time  has  passed  when  such  demands  may  be  rejected 
by  the  simple  invocation  of  sovereignty. 

The  question  of  the  responsibility  of  the  state  as 
legislator  is  also  raised  in  relation  to  laws  which 
change  the  operation  of  a  public  service  managed  by 
private  hands.  I  have  shown  above  that  the  govern- 
ment is  in  law  obliged  to  assure  the  adequate  opera- 
tion of  every  public  service;  and  it  is  in  consequence 
of  this  duty  that  they  can,  unilaterally,  by  ordinance 
or  legislation,  change  the  principles  on  which  such  a 
service,  even  when  in  private  hands,  can  be  man- 
aged. This  makes  plain  how  the  question  of  state 
responsibility  arises  when  a  statute,  so  passed,  makes 
the  position  of  the  private  operator  of  a  public  serv- 
ice more  onerous.  It  is  to-day  the  clear  tendency  to 
recognise  that  the  state  must  pay  compensation.  If 
there  is  lack  of  agreement  as  to  the  theory  by  which 
that  duty  may  be  explained,  it  matters  little.  The  es- 
sential and  characteristic  fact  in  legal  evolution  is  the 
recognition  of  this  principle  of  responsibility.  It 
has  been  insisted  upon  by  the  Minister  of  Public 
Works  in  his  explanation  of  the  Act  of  1908  which 
correlated  our  railway  system  with  our  canals.  The 

"Recueil,  1908,  p.  20, 


RESPONSIBILITY  217 

result  of  it  was  to  modify  on  an  important  point  the 
principles  on  which  privately  managed  railroads  are 
to  be  regulated.  "Each  time,"  wrote  the  Minister, 
"that  the  state  recognises  that  the  interest  of  any  great 
public  service  in  private  hands  involves  the  increase 
of  the  burden  implied  in  the  original  concession, 
those  private  interests  have  a  right  to  a  reparation  of 
the  prejudice."  The  third  article  of  the  act  explains 
"that  the  Council  of  State  shall  decide  on  claims  of 
compensation  by  the  railroads  arising  out  of  the  pres- 
ent statute ;"  and  even  without  the  text  the  companies 
would  certainly  have  led  a  campaign  for  compensa- 
tion. M.  Berthet,  moreover,  who  reported  the  act 
to  the  Chamber,  said  "that  this  article  decides  only  a 
question  of  capacity.  It  neither  establishes  nor  con- 
firms on  behalf  of  the  companies  any  right  to  com- 
pensation not  derived  from  the  ordinary  law.  It 
simply  gives  the  Council  of  State  sovereign  jurisdic- 
tion over  claims  to  compensation  made  by  the  com- 
panies." 

The  same  question  is  raised  in  a  particularly  inter- 
esting way  by  the  laws  of  1909  and  1910  on  pensions 
of  which  the  latter  was  retroactive  in  character. 
Here,  clearly,  was  a  legislative  regulation  which 
modified  the  condition  of  service  to  the  detriment  of 
the  private  companies  holding  government  conces- 
sions. Nobody  doubted  the  legitimacy  of  their  ac- 
tion ;  but  nobody  doubted  also  that  if  the  companies 
could  establish  a  causal  relation  between  the  new  stat- 
ute and  the  increase  of  their  obligations,  they  could 


2l8       LAW    IN    THE    MODERN    STATE 

force  the  state  to  pay  compensation  even  if  that  prin- 
ciple was  not  expressly  provided  for  in  the  state. 

It  is  a  complete  legal  system  that  is  in  process  of 
formation.  It  is  the  business  of  government  to  as- 
sure the  organisation  and  operation  of  public  utili- 
ties ;  and  whatever  the  method  by  which  they  are  or- 
ganised, it  can  take  all  necessary  steps  to  that  end. 
But  once  such  steps  result  in  increased  burdens  on 
any  goods  within  the  state,  the  national  exchequer 
must  pay.  The  responsibility  of  the  state  in  its  leg- 
islative aspect  is  simply  a  specific  element  in  a  gen- 
eral system.14 

V 

It  is  in  the  realm  of  acts  of  a  judicial  kind  per- 
formed by  civil  servants  that  the  evolution  of  public 
law  toward  the  recognition  of  responsibility  has  least 
advanced.  In  France,  and  abroad,  it  is  only  in  rare 
cases  that  the  responsibility  of  the  state  for  such  acts 
has  been  admitted.  What  is  the  reason  of  this? 

One  might  believe  that  the  main  reason  is  that  ju- 
dicial officers  express  better  and  more  directly  than 
many  others  the  sovereign  will  of  the  state.  Of 

14  There  is  now  an  abundant  literature  upon  the  question  of 
state-responsibility.  Cf.  especially  Teissier,  La  Responsabilite  de 
la  Puissance  Publique  (1908);  Tirard,  La  Responsabilite  de  la 
Puissance  Publique  (1908)  ;  de  Roux,  La  Responsabilite  de  1'Etat 
(1909)  ;  Despax,  La  Responsabilite  de  1'Etat  (1909)  ;  Marcq,  La 
Responsabilite  de  la  Puissance  Publique  (1911)  [and  for  England 
cf.  E.  Barker  in  Political  Quarterly,  Vol.  I,  No.  2,  and  Laski,  in 
Harv.  L.  Rev.,  Vol.  XXXII,  No.  5]. 


RESPONSIBILITY  2IQ 

course  in  the  constitutions  of  1791  of  the  year  III  and 
of  1848  the  judiciary  formed  a  third  power  equal  to 
but  independent  of  the  others  and  like  them  express- 
ing the  sovereign  will  of  the  state.  That  responsibil- 
ity was  never  in  question  where  the  act  concerned 
emanated  from  the  legislature,  the  executive,  or  the 
judiciary.  But  if  to-day  we  still  speak  of  judicial 
power,  it  is  only  by  customary  usage.  There  is 
neither  written  law  nor  political  doctrine  which  ad- 
mits the  existence  of  a  judicial  power  in  the  sense  of 
1791.  Like  administrative  officials,  judicial  officers 
are  simply  officers  who  act.  The  method  of  their 
nomination,  their  capacity,  their  status,  may  differ 
from  those  of  administrative  officials;  but  at  bottom 
the  two  classes  are  similar.  It  follows  that  if  we 
unreservedly  admit  the  responsibility  of  the  state  for 
the  acts  of  the  administrative  officials,  the  same  must 
be  true  of  judicial  officers;  The  reason  of  the  dis- 
parity is  not,  however,  inexplicable. 

In  the  French  system,  the  judicial  authority  has 
alone  capacity  to  pass  upon  criminal  trials  and  every 
civil  case  which  arises  from  the  relations  of  private 
citizens.  But  its  power  does  not  end  there.  It  may 
also  decide  every  case  where  administrative  law  is  not 
involved  which  directly  concerns  liberty  or  property. 
Arrests,  confiscation,  requisitions,  bail,  injunction — 
all  these  are  within  its  function.  We  have  thus  to 
distinguish  between  its  jurisdictional  and  non-juris- 
dictional  power;  and  it  is  thus  that  is  explained  why 


220       LAW    IN    THE    MODERN    STATE 

the  recognition  of  state  responsibility  for  judicial  ac- 
tion has  hardly  begun.15 

The  obstacle  is  in  the  nature  of  the  act  involved. 
Positive  legislation  has  sought  to  find  a  safeguard  in 
the  guarantee  of  independence  and  wisdom  with 
which  they  have  invested  the  personnel  of  the  judi- 
ciary. However  lawyers  may  differ  as  to  the  in- 
ternal nature  of  a  judicial  act  it  clearly  states  with  the 
force  of  legal  and  social  truth,  the  existence,  the  non- 
existence  or  the  extent  of  a  legal  situation.  A  judi- 
cial act  has  the  gravest  social  importance  because, 
perhaps  more  than  any  other  act,  by  assuring  legal 
order,  it  assures  social  order.  Where  conflict  arises, 
its  business  is  to  say  in  what  consists  the  measures  to 
secure  impartiality  and  ability  in  the  process;  but 
when  every  appeal  has  been  exhausted  the  decision  of 
the  court  is  definitely  imposed  on  every  citizen.  If 
the  partners  concerned  could  demand  compensation, 
for  any  reason,  on  the  question  that  had  been  judged, 
the  whole  problem  would  be  re-opened.  That  is 
socially  impossible,  because  it  would  open  up  a  per- 
manent source  of  disorder. 

It  has  sometimes  been  urged  that  the  state  ought  to 
be  responsible  where  a  prisoner,  condemned  in  an  in- 
ferior court,  is  acquitted  on  appeal,  or  where  the 
plaintiff  in  error  is  successful  in  the  higher  court.  It 

15  On  the  character  of  judicial  acts,  cf.  Jeze,  Revue  de  Droit 
Public  (1909),  p.  661 ;  Duguit,  Traite,  I,  260f.  [Cf.  also  Duguit, 
Separation  des  Pouvoirs,  p.  14f ;  and  Dupont,  Archives  Parlemen- 
taires,  1st  Series,  Vol.  XII,  p.  140.] 


RESPONSI  B  ILITY  221 

has  been  urged  that  in  such  a  case  the  principle  of 
finality  does  not  exclude  the  principle  of  responsi- 
bility. That  is  true  enough.  But,  in  neither  hy- 
pothesis, does  the  state  become  irresponsible  because 
of  the  principle  of  finality.  It  escapes  responsibility 
because  in  a  total  view  of  things  the  function  of  jus 
tice  is  adequately  performed.  There  is  no  ground 
for  complaint  except  against  the  possible  personal 
fault  of  the  judges  in  the  court  below.  That  might 
be  held  to  imply  their  responsibility,  but  that  is  al- 
ready a  different  question.  For  long  this  irresponsi- 
bility knew  no  exception,  but  in  1895  the  act  dealing 
with  criminal  appeals  which  modified  Article  446  of 
the  Code  of  Criminal  Instruction  introduced  one. 
"The  decision  of  the  Court  of  Appeal  establishing 
the  innocence  of  the  accused  may,  at  his  request,  grant 
him  damages  for  the  prejudice  caused  to  him  by  his 
conviction.  These  damages  will  be  paid  by  the  state 
save  where  the  appeal  is  against  private  persons." 
The  legislature  here  declared  itself  a  partisan  of  the 
idea  that  in  such  a  case  the  business  of  justice  has  been 
badly  performed  by  condemning  definitely  an  inno- 
cent person.  Whether  there  is  fault  or  no  in  the  ju- 
dicial officer  does  not  matter,  the  fundamental  fact  is 
a  miscarriage  of  justice.  The  national  exchequer 
must  recognise  a  miscarriage  performed  for  its  bene- 
fit. There  the  legislature  stops;  and  it  has  always 
been  narrowly  interpreted. 

The  same  question  is  raised  for  non-jurisdictional 
acts.     Here  the  reasons  which  obtain  in  regard  to 


222       LAW    IN    THE    MODERN    STATE 

judicial  decisions  are  not  involved ;  but  responsibility 
has  not  yet  been  admitted  and  seems  still  far  off. 
Writers  of  authority,  like  M.  Teissier 16  and  M.  Gar- 
raud,17  think  that  state  responsibility  cannot  be  in- 
volved for  arbitrary  arrest  by  an  officer  of  the  law. 
M.  Holland,  one  of  the  most  recent  commentators, 
has  insisted  18  that  the  irresponsibility  of  the  state 
must  extend  from  judicial  matters  to  public  matters ; 
and  notably  to  the  arrests  with  which  they  are 
charged. 

In  the  Bill  on  the  protection  of  individual  liberty, 
laid  on  the  table  in  1904  by  M.  Clemenceau,  one  ar- 
ticle contained  the  principle  of  state  responsibility 
when  the  police  wrongly  attacked  individual  liberty. 
M.  Clemenceau  was  then  a  senator;  but  in  his  bill  of 
1907  when  he  was  Prime  Minister  no  such  clause  is 
to  be  found.  The  text  adopted  by  the  senate  at  the 
second  reading  in  1909  contains  an  article  which  de- 
fines the  cases  where  a  magistrate  can  be  sued  and 
makes  the  following  proposal:  "The  state  is  civilly 
responsible  for  condemnation  to  damages  pro- 
nounced against  magistrates  save  for  its  appeal 
against  the  latter."  The  senate  thus  recognises  the 
responsibility  of  the  judiciary  only  for  such  personal 
faults  as  give  rise  to  suit  and  indirect  responsibility 
on  its  part.  Dominated  by  outworn  civilian  theory, 
it  destroys  the  direct  responsibility  of  the  state  and  is 

16  Teissier,  op.  cit.,  no.  42. 

17  Precis  de  Droit  Criminel  (1908),  p.  943. 
"Revue  de  Droit  Public  (1909),  p.  727. 


RESPONSIBILITY  223 

out  of  harmony  with  the  general  evolution  of  public 
law. 

It  may  be  noted  that  since  1910  a  vote  of  credit  has 
been  granted  to  the  Minister  of  Justice  "for  individ- 
uals who  have  been  arrested  and  then  released  by  vir- 
tue of  decisions  in  chambers  or  by  reason  of  a  nolle 
prosequi  or  acquittal  by  the  decision  of  the  court."  19 
But  in  his  report  of  1910  M.  Bourely  explained  "that 
we  do  not  intend  to  recognise  any  right  to  compensa- 
tion on  the  part  of  victims  of  arbitrary  arrest;  that 
proposal  is  reserved  until  the  bill  dealing  with  the 
guarantees  of  individual  liberty  has  been  examined." 
But  the  bill  has  not  been  voted  upon  and  it  seems  post- 
poned to  the  Greek  Kalends. 

The  only  explanation  for  such  an  attitude  is  the 
erroneous  assimilation  of  two  entirely  different  kinds 
of  acts.  It  is  unconsciously  believed  that  the  deci- 
sion of  the  court  is  like  the  decision  of  the  police.  It 
is  an  error  that  has  often  been  denounced  but  seems 
endorsed  with  tenacity.  We  can  only  believe  that  in 
the  end  the  reality  of  facts  will  prove  stronger  than 
tradition  and  that  the  situation  of  a  judicial  officer 
will  be  in  all  non-jurisdictional  equated  with  that  of 
an  administrative  official.20 

VI 

It  is  indeed  with  the  latter  that  the  legal  system  of 

19  Budget  of  1912,  Journal  Official,  Feb.  28,  1912,  art.  23. 

20  Cf.  Larnaude,  Revue  Penitentiare,  1901,  p.  185;  Lerebourg- 
Pigeonniere,  Ibid,  p.  1130. 


224      LAW    IN    THE    MODERN    STATE 

public  responsibility  has  thus  far  attained  its  largest 
development;  nor  can  it  be  explained  save  by  the 
complete  elimination  of  the  idea  of  sovereign  power. 
From  whatever  official  the  act  is  derived,  whatever 
the  nature  of  the  act  involved,  public  responsibility 
may  be  engaged.  Nor  is  distinction  made  between 
sovereign  and  non-sovereign  acts.  Above  all,  the 
last  step  in  this  evolution  has  been  taken  and  govern- 
ment liability  may  be  involved  where  there  is  no  fault 
in  service. 

It  is  true,  of  course,  that  the  idea  of  fault  is  still 
found  in  the  reports,  but  by  that  is  meant,  not  the 
fault  of  a  personified  service,  but  the  fault  of  an  ac- 
tual agent.  Sometimes  the  fault  is  real ;  in  that  case 
it  is  the  basis  of  governmental  penalization,  whether 
the  fault  is  violation  of  statute  or  official  negligence. 
Sometimes  no  such  fault  is  to  be  found ;  but  the  courts 
insist  on  assuring  the  private  citizen  against  the  dam- 
age that  may  be  caused  by  the  operation  of  the  public 
service,  by  making  the  state  responsible.  This  is 
what  has  been  called  assurance  against  administra- 
tive risk. 

Here  in  all  its  fullness  is  made  clear  a  fundamen- 
tal notion  of  the  new  public  law.  The  state  is  the 
totality  of  public  services  operated  by  government  in 
the  general  interest.  Once  that  operation  involves 
special  prejudice  to  a  private  citizen,  the  national 
exchequer  must  bear  the  burden  of  it.  This  is  not  a 
sudden  evolution,  but  it  has  been  a  rapid  one,  and  it 
is  perhaps  worth  while  to  note  its  principal  stages. 


RESPONSIBILITY  22  $ 

I  showed  earlier  in  this  chapter  that,  in  a  frankly 
imperialist  system,  the  irresponsibility  of  the  state 
was  a  principle  to  which  no  exception  save  expropri- 
ation, direct  or  indirect,  and  permanent  proprietary 
damage,  was  admitted.  The  principle  was  too  nar- 
row to  be  fundamental.  With  the  increase  of  state 
functions  the  theory  of  irresponsibility  became  unat- 
tainable. It  was  seen  that  the  theory,  to  which  some  ^ 
partisans  are  still  attached,  of  the  distinction  between  /u^ 
irresponsible  sovereign  acts  and  responsible  non-sov- 
ereign acts  was  involved.  To-day  that  theory  is  im- 
portant only  as  a  stage  in  progress.  In  the  earlier 
editions  of  his  book  on  administrative  law,  M.  Ber- 
thelemy  formulated  it  as  a  dogma  and  as  late  as  1913 
he  could  still  maintain  the  irresponsibility  of  the 
state,  save  where  statute  had  otherwise  provided.21 
But  he  has  been  obliged  to  recognise  the  emergence 
of  change  and  the  evolution  by  the  courts  of  the  the- 
ory of  responsibility.  He  thinks,  indeed,  that  they 
are  contrary  to  law.  "The  Council  of  State,"  he 
writes,22  "is  the  only  judge  of  the  fairness  of  the  com- 
pensation demanded.  It  has  not  only  to  ask  the 
source  of  the  evil  against  which  protest  is  made;  it 
has  also  to  examine  the  question  of  its  injustice*  and 
the  merit  of  compensation.  ...  I  must  insist  on  the 
arbitrary  appreciation  that  is  here  given  by  the  Coun- 
cil of  State."  In  other  terms,  M.  Berthelemy  be- 
lieves that  a  governmental  act  raises  in  law  no  claim; 

21  Droit  Administratif  (7th  ed.),  p.  7Q. 

22  Ibid. ,  p.  79  and  note  1. 


226       LAW    IN    THE    MODERN    STATE 

in  fact,  and  for  reasons  of  justice,  the  Council  of  State 
affords  compensation. 

I  cannot  understand  this  opposition  between  equity 
and  law.  I  do  not  see  how  a  solution  can  be  true  in 
law  and  untrue  in  equity,  how  a  division  can  be  made 
between  theory  and  practice.  The  impracticable 
and  the  inequitable  cannot  be  legal.  Law  is  the  body 
of  rules  based  upon  equity  and  responding  to  a  prac- 
tical need.  No  rule  not  so  distinguished  can  be  a 
rule  of  law.  If  in  equity  and  practise  the  state  is  re- 
sponsible for  damage  involved  in  the  performance  of 
its  functions/ the  rule  of  law  must  conform  to  that 
responsibility. 

How  has  that  happened?  Undoubtedly  because 
the  modern  mind  is  dissatisfied  with  the  classic  the- 
ory of  sovereignty;  and  it  is  possible  to  point  out  the 
moment  when  French  jurisprudence  accomplished 
the  change.  In  1899  the  Council  of  State  dealt  with 
an  action  for  responsibility  brought  by  M.  Le  Preux, 
who  had  been  wounded  at  Maisons-Alfort  (Seine), 
where  the  watch  is  a  state  service.  The  plaintiff 
founded  his  plea  on  the  negligence  of  the  service.  It 
was  rejected  on  the  ground  that  "it  is  a  matter  of 
principle  that  the  state  is  not,  where  it  exercises  its 
sovereign  power,  and  notably  in  regard  to  the  police, 
responsible  for  the  negligence  of  its  agents.  ...  It 
is  admitted  that  Le  Preux  may  secure  personal  dam- 
ages against  the  officials  concerned  but  that  gives  no 
right  of  action  against  the  state.'7  23 

28Recueil,  1899,  p.  17. 


RESPONSIBILITY  227 

This  decision  was  most  vehemently  criticised  by 
M.  Hauriou  in  a  most  remarkable  note  in  Sirey.24 
He  did  not  go  so  far  as  to  recognise  the  general  re- 
sponsibility of  the  state.  Like  the  Court,  he  admit- 
ted that  state  responsibility  can  only  be  involved  by 
an  act  that  at  each  stage  of  its  application  bears  the 
marks  of  sovereign  power.  He  admitted  that  when 
the  government,  as  a  police  regulation,  does  not  enter 
into  direct  relation  with  private  citizens  it  cannot 
be  held  responsible.  But  he  forcibly  insisted  that 
when  the  state  comes  into  contact  with  private  citi- 
zens in  the  performance  of  its  functions,  no  mat- 
ter of  what  kind,  it  ought  to  be  responsible.  He 
urged  that  it  had  such  relations  in  the  Le  Preux  case 
and  that  the  decision  of  the  Council  of  State  was 
wrong. 

The  decision  aroused  much  discussion  and  has  had 
much  influence.  Several  years  later  a  case  arose 
identical  to  that  of  Le  Preux.  Grecco  demanded 
compensation  for  a  wound  received  in  his  house  at 
Soukoras  (Algeria)  by  a  shot  from  a  rifle  of  a  gen- 
darme, fired  at  a  mad  bull  whichma^owd.was_chas- 
ing.  The  plaintiff  urged  that  the  accident  would  not 
have  occurred  if  the  police  had  adequately  performed 
.their  duty.  The  Council  of  State  rejected  the  plea; 
that  the  decision  contains  these  significant  words: 
"the  evidence  does  not  show  that  the  accident  of 
which  the  plaintiff  had  been  a  victim  is  due  to  a  fault 
in  the  public  service  for  which  government  would  be 

2*  Sirey,  1900,  III,  p.  1. 


228       LAW    IN    THE    MODERN    STATE 

responsible."  25  M.  Romieu,  as  counsel  for  govern- 
ment, put  the  bearing  of  this  statement  in  the  clearest 
relief:  "It  is  true  that  for  some  time  jurisprudence 
has  admitted  that  for  acts  of  police  or  of  sovereignty 
the  state  has  no  pecuniary  responsibility.  But  it  has 
ended  by  admitting  the  inconveniences,  the  contradic- 
tions and  the  injustice  to  which  so  general  a  formula 
would  lead." 

Such  was  the  first  stage  of  the  evolution.  There 
was  no  longer  to  be  a  distinction  between  sovereign 
and  non-sovereign  acts.  Every  administrative  act 
could  involve  state  responsibility.  The  authorities, 
however,  still  connected  this  responsibility  with  a 
fault  of  the  public  service.  How  was  that  to  be  in- 
terpreted? M.  Hauriou  tried  to  show  that  it  meant 
a  fault  of  the  state  regarded  as  a  person.  "The  state," 
he  says,26  "is  responsible  because  the  fact  of  service 
makes  it  a  fault."  But  that  was  not  in  the  mind  of 
the  Council  of  State ;  when  it  said  "fault  of  service" 
it  meant  "faults  committed  by  agents  in  that  serv- 
ice." It  meant  that  the  possibility  of  such  faults  in- 
volves a  risk  but  that  if  the  risk  is  realised  the  state 
must  pay.  There  was  no  state  responsibility  where 
the  agents  were  not  at  fault. 

On  the  other  hand,  the  Council  did  not  imagine 
more  than  individual  administrative  acts.  Acts  of 
regulation  were  still  surrounded  by  the  penumbra  of 

25Conseil  d'Etat,  Feb.  1st,  1905,  Recueil,  p.  140;  Sirey,  1905, 
III,  p.  113. 

26  Sirey,  1905,  III,  113. 


RESPONSIBILITY  229 

sovereignty;  and  it  was  long  before  that  ghost  was 
banished.  Meanwhile  the  Council  of  State  recog- 
nised in  a  whole  series  of  decisions  government  re- 
sponsibility. Since  1903  it  had  implicitly  admitted 
that  the  state  could  incur  responsibility  for  the  un- 
just dismissal  of  a  civil  servant.  It  gave  compensa- 
tion for  the  abusive  execution  of  a  decision  of  a  pro- 
jectoral  council.  In  1910  the  state  was  compelled 
to  pay  damages  to  certain  old  soldiers  who  had  been 
called  with  undue  slowness  to  civil  employment  in 
violation  of  the  Act  of  1905.  In  1911  the  state  was 
declared  responsible  for  the  damage  caused  to  a  canal 
boat  by  the  negligence  of  the  lock  keepers. 

In  these  different  cases  there  is  always  mention  of 
a  fault  in  operation  or  an  agent's  negligence.  But  it 
is  to  be  noted  that  the  Council  is  generous  in  its  inter- 
pretation of  fault.  It  takes  it  for  granted ;  and  as  a 
consequence  the  administration  does  not  urge  con- 
current negligence  on  the  part  of  the  private  citizen. 
This  presumption  of  fault  was  strikingly  shown  in 
the  Pluchard  case.27  Pluchard  was  knocked  down 
in  a  street  of  St.  Denis  by  a  policeman  pursuing  a 
criminal  and  his  leg  was  broken.  The  policeman 
was  not  at  fault.  He  was  only  doing  his  duty  and 
the  occurrence  was  a  simple  accident.  Compensa- 
tion was  however  granted.  "The  circumstances 
show  entire  absence  of  negligence  on  the  part  of  the 
plaintiff,  and  the  accident  must  therefore  be  attrib- 
uted to  a  fault  in  the  public  service  which  involves 

"Recueil,  1910,  p.  1029. 


230       LAW    IN    THE    MODERN    STATE 

the  responsibility  of  the  state."  Where  is  the  fault? 
The  policeman  was  pursuing  the  criminal ;  he  accom- 
plished his  task,  and  the  accident  was  produced  by  an 
unhappy  chance  independent  of  any  negligence. 
The  term  only  expresses  a  linguistic  tradition. 
The  real  evolution  has  been  accomplished.  The  re- 
sponsibility of  the  administration  is  involved  where 
a  special  prejudice  touches  an  individual  or  a  group. 
Administrative  risk  begets  administrative  responsi- 
bility.28 

VII 

A  last  step  remained.  So  far,  state  responsibility 
has  been  involved  only  where  individual  administra- 
tive acts  have  been  concerned.  In  1903  when  the 
general  responsibility  of  the  state  began  to  be  admit- 
ted, there  was  no  thought  of  extending  it  to  govern- 
ment ordinances.  M.  Hauriou,  in  the  note  cited 
above,  recognised  without  difficulty  the  irresponsi- 
bility of  government  in  this  regard.  This  concept 
no  longer  holds  good.  To-day  governmental  re- 
sponsibility is  involved  no  less  for  ordinances  than 
for  personal  acts. 

This  responsibility  was  recognised  in  the  decision 
of  1907,  which  has  already  been  cited.  The  railway 
companies  urged  that  the  decree  of  March  ist,  1901, 
on  railroad  safety,  which  modified  the  previous  or- 

28  Note,  however,  the  hesitation  of  the  Council  of  State  in  the 
Ambrosini  case;  and  cf.  the  comment  of  M.  Hauriou,  Sirey,  1912, 
III,  161. 


RESPONSIBILITY  231 

dinances  of  1846,  was  ultra  vires.  It  was  urged  that 
since  their  concession  was  granted  on  the  basis  of  the 
decree  of  1846  a  later  regulation  involving  an  in- 
crease of  expenditure  was  ultra  vires  by  violating  an 
implied  contract.  The  Council  of  State  rejected  this 
application.  Government,  in  its  view,  has  always 
the  right  to  change  the  conditions  under  which  the 
public  service  is  operated.  But  at  the  same  time  it 
declared  that  if  the  companies  could  show  special 
prejudice  by  reason  of  the  new  decree  they  would 
have  the  right  to  compensation.29  Here  the  responsi- 
bility of  the  state  for  an  act  of  public  administration 
—an  act  comparable  to  formal  statute — is  clearly  ad- 
mitted. 

It  has  been  shown  above  that  the  responsibility  is 
not,  in  fact,  contractual ;  even  though  the  Council  of 
State  makes  use  of  that  category.  The  idea  of  public 
service  is  here  all-important.  The  state  has  the 
power  and  duty  of  modifying  by  ordinance  or  formal 
statute  the  rules  relating  to  public  utility;  but  it  must 
indemnify  all  those  in  a  special  degree  prejudiced  by 
the  modification. 

The  same  answer  has  been  given  when  prefects 
modify  by  regulation  a  local  railway  or  tramway 
service  in  'private  hands  by  the  power  conferred  on 
them  in  the  Act  of  June  u,  1880.  The  compensa- 
tion is  then  borne  by  the  public  funds  of  the  depart- 
ment or  commune  served  by  the  company.  This  was 
decided  in  more  different  decisions  in  1910  by  the 

29Recueil,  1907,  p.  913;Sircy,  1908,  III,  1. 


232       LAW    IN    THE    MODERN    STATE 

Council  of  State.  The  prefect  of  the  Seine  ordered 
the  Metropolitan  Company,  for  the  safety  of  travel- 
lers, to  make  certain  changes  which  increased  the  ex- 
penditure contemplated  by  the  Charter.  The  Coun- 
cil upheld  his  decision  but  admitted  the  principle  of 
state  responsibility.  A  month  later  it  gave  a  similar 
decision  in  a  southern  case.30 

This  solution  is  a  fortiori  applicable  where  the  reg- 
ulation is  illegal.  The  party  concerned  can  have  the 
act  annulled  on  the  ground  that  it  is  ultra  vires]  but 
the  period  of  appeal  is  very  short,  being  by  the  law 
of  April  13,  1900,  reduced  from  three  to  two  months. 
When  the  period  has  passed,  the  party  concerned 
must  claim  compensation.  That  has  been  for  a  long 
time  admitted  without  controversy  for  individual 
acts ;  a  further  step  is  being  taken  and  the  decision  is 
being  made  applicable  to  ordinance  as  well.  It  is 
true  that,  so  far,  this  decision  has  been  made  only 
when  municipal  decrees  are  in  question;  but  the  prin- 
ciple is  no  different.  A  mayor  of  the  Department  of 
Aude  ordered  the  church  bells  to  be  rung  at  civil 
funerals.31  The  Council  of  State  has  often  held  this 
act  ultra  vires  in  view  of  the  law  of  January  2,  1907. 
This  law  declared  the  churches  especially  devoted  to 
the  Catholic  religion,  free  from  lay  control  in  re- 
gard to  their  internal  property.  In  the  case  quoted 
the  legal  period  of  plea  had  elapsed.  The  action  for 

30Recueil,  1910,  pp.  97  and  216;  Revue  de  Droit  Public, 
1910,  p.  270. 

81  Le  Temps,  June  17,  1912. 


RESPONSIBILITY  233 

compensation  was  won,  because  the  communal  ex- 
chequer must  repair  any  material  or  moral  preju- 
dice suffered  by  a  private  citizen  by  reason  of  the 
police  service  of  the  commune. 

The  vast  extension  of  state  responsibility  in  modern 
law  has  received  recently  a  curious  application  in  a 
decision  of  the  tribunal  of  the  Seine.  It  forms  the 
epilogue  in  the  long  and  regrettable  Turpin  case. 
Turpin  was  the  inventor  of  melinite.  He  brought 
an  action  for  damages  against  the  state,  Schneider  & 
Co.,  the  Iron  Company  of  the  Mediterranean  and  M. 
Canet.  The  tribunal  of  the  Seine  limited  the  case  to 
the  state  and  condemned  it  to  pay  Turpin  one  hun- 
dred thousand  francs  in  damages.  "The  acts  of  the 
Minister  of  War,"  said  the  court,32  "have  clearly 
caused  Turpin  a  prejudice  for  which  the  state  is  re- 
sponsible. .  .  .  This  prejudice  results  from  prevent- 
ing Turpin  from  opening  negotiations  with  Arm- 
strong; whether  because  the  Department  of  War  left 
to  him  the  vain  expectation  of  making  a  new  arrange- 
ment with  France,  or  because  the  Department,  under 
false  promises  of  compensation,  had  obtained  the  in- 
clusion of  certain  clauses  in  his  contract  with  Arm- 
strong .  .  .  clearly  Turpin  has  the  right  to  compen- 
sation." 

No  decision  shows  better  how  far  our  age  has 
travelled  from  the  imperialist  conception  of  law. 
We  need  not  inquire  why  the  court  did  not  declare 
itself  incompetent  in  the  case  nor  why  the  question 

32  Le  Temps,  Jan.  13,  1911. 


234       LAW    IN    THE    MODERN    STATE 

was  not  raised.  However  that  may  be,  we  have  a 
court  which  unhesitatingly  scrutinises  and  judges  the 
acts  of  a  public  service  which,  if  sovereignty  were 
anything  more  than  a  mere  term,  would  clothe  itself 
in  the  cloak  of  irresponsible  authority.  The  decision 
recognises  that  the  state  is  responsible,  not  for  what 
it  has  done,  but  for  what  it  has  failed  to  do.  It  holds 
the  state  responsible  for  not  buying  from  Turpin  his 
patent,  and  by  its  hesitations  preventing  him  from 
selling  his  patent  to  a  foreign  company,  thus  causing 
him  damage.  The  idea  of  public  responsibility 
based  upon  public  fault  could  hardly  be  more  clearly 
vindicated. 

It  is  therefore  probable  that  the  restrictions  which 
still  limit  the  general  responsibility  of  the  state  will 
soon  disappear.  The  courts  have  constantly  held 
that  for  acts  of  war  or  diplomacy  the  state  cannot  be 
held  responsible.  No  sovereignty  is  in  question 
here ;  for,  if  it  were,  internal  no  less  than  external  se- 
curity would  be  protected  by  it,  and  both  the  police 
and  the  army  would  be  irresponsible  in  time  of  peace. 
Though  that  is  not  the  case,  yet  state  responsibility  is 
not  involved  in  these  two  categories  of  acts.  Thus  in 
1905  and  1907  a  Council  of  State  decided  against 
pleas  for  compensation  for  damage  inflicted  in  the 
Dahomey  and  Madagascar  wars  on  the  ground  that 
military  operations  on  foreign  territory  cannot  give 
rise  to  action  in  the  courts.33  Similarly,  in  1904,  it 
refused  a  plea  of  prejudice  occasioned  by  diplomatic 

wRccucil,  1905,  p.  226;  Ibid,  1907,  p.  185, 


RESPONSIBILITY  235 

policy  on  the  ground  that  a  question  relating  "to  the 
exercise  of  sovereign  power  in  the  relation  of  the 
French  government  with  foreign  governments  can- 
not be  brought  before  the  Council  of  State.34  The 
court  thus  used  the  idea  of  sovereignty  to  evade  the 
idea  of  responsibility.  Dead  in  the  domain  of  in- 
ternal public  law,  it  still  persists  in  the  realm  of  for- 
eign policy.  But  here  also  it  is  destined  to  perish. 


VIII 


While  the  responsibility  of  the  state  has  thus  been 
enlarged,  what  has  been  the  evolution  of  the  personal 
responsibility  of  the  civil  servant?  It  has  undergone 
at  once  extension  and  precision. 

The  question  of  this  responsibility  is  asked  in  en- 
tirely different  terms  from  that  of  the  responsibility 
of  the  state.  That,  as  we  have  shown,  is  the  purely 
objective  responsibility  of  risk.  The  responsibility 
of  the  civil  servant  is  on  the  contrary  the  subjective 
responsibility  of  fault.  It  is  they  themselves  who 
act,  and  not  some  fictive  person  of  whom  they  are 
the  mandatories  or  organs.  Officials  are  individuals 
in  presence  of  other  individuals,  citizens  subject  to 
the  control  of  the  courts.  The  problem  of  responsi- 
bility as  between  two  individuals  goes  back  to  a  con- 
flict between  two  wills;  responsibility  ought  natur- 
ally to  rest  upon  him  who  has  consciously  violated 
some  rule  of  law.  But  that  is  the  definition  of  fault. 

34Recueil,  1904,  p.  873;  Revue  de  Droit  Public,  1905,  p.  98. 


236       LAW    IN    THE    MODERN    STATE 

The  evolution  of  public  law  has  been  the  deter- 
mination of  the  cases  and  conditions  in  which  the 
fault  of  a  civil  servant  is  such  as  to  make  it  purely  his 
personal  responsibility,  and  not  that  of  the  state,  to 
some  private  citizen.  This  evolution  is  to-day  prac- 
tically completed.  There  is  a  complete  category  of 
civil  servants  in  relation  to  whom  the  evolution  of 
our  jurisprudence  is  strictly  limited  by  the  rules  of 
our  Code  of  Procedure  (Arts.  505-516).  This  text 
recognises,  doubtless,  the  personal  responsibility  of 
the  judiciary,  but  under  strict  limitations.  It  enu- 
merates definitely  the  cases  in  which  they  can  be 
made  responsible  and  the  method  by  which  it  may  be 
engaged.  That  can  be  done  only  where  there  is  some 
kind  of  fraud,  whether  in  the  course  of  proceedings, 
or  at  the  moment  of  the  verdict,  or  when  there  is  the 
denial  of  justice;  that  is  to  say,  when  the  judge  "re- 
fuses to  answer  requests  or  neglects  to  pass  on  cases 
that  have  been,  or  are  about  to  be,  determined." 

This  is  an  antiquated  legislation  no  longer  adapted 
to  the  situation  of  our  public  law;  sooner  or  later  its 
rigid  limits  will  be  widened.  Certain  attempts,  in- 
deed, have  already  been  made  in  this  direction.  In 
the  preamble  to  his  statute  on  the  protection  of  indi- 
vidual liberty,  M.  Clemenceau,  in  1904,  as  simple 
senator,  declared  that  the  basic  guarantee  of  individ- 
ual liberty  was  a  well-organised  responsibility  of  the 
judicial  office.  The  same  ideas  underlay  the  pro- 
posal of  M.  Cruppi  in  1905.  The  proposal,  read  a 
second  time  by  the  senate  on  March  2,  1909,  enlarged 


RESPONSIBILITY  237 

and  made  precise  those  cases  where  judicial  officers 
can  be  held  personally  responsible;  but  the  special 
procedure  was  retained  in  a  fashion  so  technical  that, 
as  was  said  in  the  discussion,  only  two  cases  had  been 
successful  since  the  promulgation  of  the  code.  The 
pith  of  the  matter  lies  there. 


IX 


No  texts  restrict  the  responsibility  of  administra- 
tive civil  servants,  and  our  evolution  goes  forward 
without  hindrance.  The  Constitution  of  the  year 
VIII,  while  it  maintains  the  principle  of  responsi- 
bility formulated  by  the  earlier  constitution,  subordi- 
nates every  penal  or  civil  action  against  a  civil  serv- 
ant to  the  prior  authorisation  of  government  through 
the  Council  of  State  (Art.  75).  That  destroyed  all 
responsibility;  and  throughout  the  Restoration,  the 
liberal  party  bitterly  criticised  this  rule  without  suc- 
cess. Art.  67  of  the  Charter  of  1830  announced  a 
statute  on  the  responsibility  of  officials;  a  bill  was 
brought  forward  and  there  were,  particularly  in 
1835,  long  and  confused  discussions.  All  to  no  end; 
Art.  75  remained  always  in  force.  The  Republic  of 
1848  did  nothing  and,  naturally,  the  Second  Empire 
took  care  to  prevent  its  abrogation.  Since  the  Coun- 
cil of  State  had  still  only  a  consultative  power — every 
action  against  the  civil  service  was  subordinated  to 
the  pleasure  of  government.  At  the  end  of  the  Sec- 
ond Empire  the  abrogation  of  Art.  75  was  one  of  the 


238       LAW    IN    THE    MODERN    STATE 

essential  principles  of  the  liberal  and  republican  pro- 
gram. One  of  the  first  acts,  therefore,  of  the  govern- 
ment of  National  Defence  was  the  decree  of  Sept. 
19,  1870,  abolishing  all  restrictions  of  this  kind. 

This  text,  which  seems  clear  enough,  yet  gave  rise 
to  great  controversy  of  which  the  interest  is  n'ot 
merely  historical.  The  law  has  been  settled  by  a  de- 
cision of  the  Court  of  Conflicts  based  on  the  report  of 
M.  Mercier  in  the  Pelletier  case.  This  was  an  ac- 
tion for  responsibility,  brought  before  an  ordinary 
court,  by  the  owner  of  a  newspaper  which  had  been 
suspended  by  General  Ladmirault,  in  command  of 
the  Department  of  the  Oise,  then  in  a  state  of  siege. 
The  court  said  that  "the  decree  which  abolishes  Art. 
75  has  only  put  an  end  to  that  non-receivability 
which  gives  to  the  ordinary  courts  complete  freedom 
of  action  within  the  limits  of  their  capacity;  but  it  has 
not  extended  their  jurisdiction,  or  suppressed  the  pro- 
hibition against  them,  to  take  cognisance  of  adminis- 
trative acts."  The  decision  then  insisted  on  the  ad- 
ministrative character  of  the  act  leading  to  the  pros- 
ecution, and  said :  "Outside  this  act  the  plaintiff  has 
imputed  to  the  defendant  no  personal  act  involving 
his  private  responsibility."  35 

So  was  created  by  the  Court  of  Conflicts  the  dis- 
tinction between  official  and  personal  acts.  For  offi- 
cial acts  the  government  alone,  and  not  the  civil  serv- 
ant, is  responsible;  the  latter  is  only  responsible  for 
personal  acts  and  most  often  the  Court  of  Conflicts 

85Recueil,  1873,  suppl.  I,  p.  117;  Sirey,  1874,  II,  28. 


RESPONSIBILITY  239 

decides  if  the  act  is  personal.  Where  the  official  is 
taken  before  the  civil  court,  the  prefect  will  bring  it 
before  the  administrative  tribunal.  If  the  latter 
thinks  that  the  act  is  of  an  official  nature,  it  confirms 
the  prefectorial  decision;  otherwise  it  sends  it  back 
to  the  ordinary  court  and  the  latter  then  proceeds  in 
its  usual  manner.  The  Court  of  Conflicts  thus  exer- 
cises a  power  which  is  not  its  own  in  law.  In  reality, 
it  does  not  pass  upon  a  question  of  capacity,  which  is 
not  a  matter  of  debate,  but  upon  the  question  of 
whether,  the  act  having  been  shown  to  have  been 
done,  it  was  official  or  personal.  The  result  has  been 
that  the  business  of  jurisprudence  has  been  the  dis- 
covery of  a  criterion  by  which  to  distinguish  personal 
from  official  acts. 

Some  decisions  settle  personal  faults  by  degree  of 
fault;  when  the  official  has  made  a  great  mistake  the 
act  is  personal.  That  is  contrary  to  the  most  recent 
decisions  which,  in  the  words  of  M.  Hauriou,  make 
the  civil  servant  responsible  only  where  his  act  is 
out  of  relation  to  his  function.  The  fault  may  be 
inexcusable  and  yet  be  official  if  it  is  inherent  in  his 
position;  it  may  be  light  and  yet  personal  because  it 
is  not  so  inherent.  Its  gravity  will  make  him  re- 
sponsible to  the  state  even  while  it  leaves  him  irre- 
sponsible so  far  as  the  private  citizen  is  concerned. 

This  is  logical  enough.  It  has  been  shown  above 
how  in  the  theory  of  the  modern  state  the  responsi- 
bility of  the  state  is  not  subjectively  recognised ;  nev- 
ertheless, the  private  citizen  is  so  to  speak  insured 


240       LAW    IN    THE    MODERN    STATE 

against  the  risks  arising  from  each  public  department 
by  claims  in  its  special  budget.  Every  time  the  de- 
partment acts,  the  citizen  has  his  safeguard,  but  not 
otherwise ;  in  other  cases  it  is  the  civil  servant  alone 
whom  he  can  make  responsible.  That  clearly  em- 
phasises our  conception  of  the  state  as  a  complex 
public  service  corporation.  A  personal  act  is  obvi- 
ous when  the  civil  servant  either  breaks  the  rules,  or 
goes  beyond  his  powers;  as,  for  instance,  in  pursuing 
some  personal  vengeance  or,  as  in  the  Morizot  case, 
a  flagrantly  blasphemous  end.  If,  on  the  other  hand, 
his  act  is  merely  ultra  vires  in  some  form,  his  lack  of 
intention  negatives  his  personal  responsibility  be- 
cause, although  he  has  gone  beyond  his  powers,  he 
has  nevertheless  had  his  proper  function  in  view. 

It  is  impossible  to  cite  the  numerous  cases  which 
mark  the  stages  of  this  evolution;  some  of  the  most 
important  only  can  be  noted.  On  Jan.  ist,  1909,  S., 
an  inspector  of  indirect  taxes,  verifying  the  books  of 
the  tobacco  bonding  house  of  Toulouse  insisted  that 
there  were  irregularities  and  accused  the  boy  clerk  of 
dishonesty  and  called  him  a  thief.  The  boy  was  dis- 
missed and  summoned  the  inspector  before  the  Cor- 
rectional Court  of  Toulouse.  The  prefect  took  the 
case  to  the  Administrative  tribunal,  but  his  decision 
was  annulled  on  the  ground  that  "the  facts  show 
clearly  that  they  had  no  connection  with  S.'s  admin- 
istrative function  and  were  exclusively  personal  to 
himself."  36 

86  Recueil,  1909,  p.  726. 


RESPONSIBILITY  24! 

The  Court  of  Conflicts  has  very  clearly  admitted 
this  definition  of  personal  as  equivalent  to  the  pur- 
suit of  an  end  unconnected  with  function  in  the  Mori- 
zot  case.  M.,  a  teacher  in  the  commune  of  the  De- 
partment of  the  Cote-d'Or,  made  obscene  remarks 
before  his  class,  slandered  the  army,  apologized  for 
certain  criminal  acts,  and  blasphemed  certain  reli- 
gious and  Catholic  beliefs.  The  fathers  of  his  pu- 
pils summoned  him  before  the  courts  and  claimed 
2,000  francs  damages.  The  prefect  removed  the 
case  to  the  Administrative  Courts ;  but  that  tribunal, 
basing  itself  upon  the  admirable  report  of  M.  Tar- 
dieu,  annulled  his  decision.  "The  defendant's  re- 
marks," it  said,37  "cannot  if  proved  be  considered 
as  in  any  way  connected  with  the  teaching  which  is 
his  function  .  .  .  and  therefore  constitute  a  purely 
personal  fault." 

Another  case  is  of  interest.  A  mayor  gave  orders 
to  a  municipal  official  to  sound  the  church  bells  at  a 
civil  funeral.  He  was  sued  by  the  curate  and  the 
case  was  removed  to  the  Administrative  courts.  The 
Court  of  Conflicts  annulled  the  decision  on  the 
ground  that  the  text  neither  of  statute  regulation  nor 
of  local  custom  authorised  the  mayor  to  act  in  this 
fashion ;  what  he  did  was  therefore  personal  to  him- 
self.38 

Where  the  personal  responsibility  of  the  civil  serv- 
ant is  engaged,  no  parallel  responsibility  attaches  to 

"Redieil,  1908,  p.  597;  Sirey,  1908,  III,  83. 
38Recueil,  1910,  pp.  323,  442;  Sirey,  1910,  III,  297. 


242       LAW    IN    THE    MODERN    STATE 

the  state.  This  has  sometimes  caused  surprise,  but 
only  among  those  writers  dominated  by  the  theories 
of  the  Roman  law.  They  forget  that  the  state  is  not 
a  person  responsible  for  the  acts  of  its  agents  and 
that  by  its  responsibility  we  only  mean  an  assurance 
to  the  citizen  against  the  results  of  its  operations. 
Clearly  the  public  treasury  cannot  pay  for  faults  un- 
connected with  the  duties  of  the  state. 


CONCLUSION 

AT  the  beginning  of  this  book  I  pointed  out  that  pub- 
lic and  private  law  evolve  on  parallel  lines.  In  pri- 
vate law  the  autonomy  of  the  human  will  is  in  proc- 
ess of  disappearance;  the  individual  will  is  powerless 
by  itself  to  create  a  legal  situation.  In  public  law 
we  no  longer  believe  that  behind  those  who  hold  of- 
fice there  is  a  collective  personal  and  sovereign  sub- 
stance of  which  they  are  only  the  agents  or  organs. 
In  government  we  see  only  those  who  exercise  the 
preponderant  force  and  on  whom,  in  consequence, 
there  is  incumbent  the  duty  of  fulfilling  a  certain 
social  function.  It  is  the  business  of  government 
to  organise  certain  services,  to  assure  their  continuity, 
and  control  their  operation. 

Public  law  is  thus  no  longer  the  body  of  rules  reg- 
ulating the  relation  of  a  sovereign  state  with  its  sub-  ^ 
jects ;  it  is  rather  the  body  of  rules  inherently  neces- 
sary to  the  organisation  and  management  of  certain 
services.  Statute  is  no  longer  the  command  of  the 
sovereign  state;  it  is  the  organic  rule  of  a  service  or 
body  of  men.  An  administrative  act  is  no  longer  the 
act  of  an  official  who  gives  commands  or  of  a  public 
servant  who  fulfils  a  command;  it  is  always  an  act 
made  in  view  of  the  rule  of  service.  The  problems 

243 


244       LAW    IN    THE    MODERN    STATE 

such  acts  involve  are  always  submitted  to  the  judg- 
ment of  the  same  courts.  If  the  act  violates  a  stat- 
ute every  affected  person  can  demand  its  annullment, 
not  as  a  subjective  right  but  in  the  name  of  the  legal- 
ity that  has  been  violated.  The  responsibility  of  the 
state  is  generally  recognised.  It  is  not  the  responsi- 
bility of  a  person  for  faults  but  a  public  assurance, 
through  public  funds,  against  the  risks  involved  in 
service.  If  the  official  goes  outside  his  functions  his 
personal  responsibility  becomes  involved. 

Thus  public  law  like  private  law  is  coming  to  be 
interpreted  realistically  and  socially.  Realistically, 
in  its  denial  of  a  personal  substance  behind  actual  ap- 
pearance, in  its  refusal  to  admit  the  existence  of  a 
self-determined  and  universally  imposed  will,  and 
in  its  derivation  from  the  idea  of  a  function  that  is 
necessarily  imposed  on  government.  It  is  a  social 
conception,  in  that  public  law  no  longer  has  as  its 
object  the  regulation  of  the  conflicts  that  arise  be- 
tween the  subjective  right  of  the  individual  and  the 
subjective  right  of  a  personified  state;  it  simply  aims 
at  organising  the  achievement  of  the  social  function 
of  government.  For,  be  it  remembered,  the  plea  of 
ultra  vires,  which  is  at  the  root  of  public  law,  is  not 
based  upon  the  violation  of  individual  right  but  upon 
the  destruction  of  an  organic  rule  of  service. 

This  evolution  is  not  at  its  end;  indeed,  there  is  a 
sense  in  which  it  will  never  end.  Social  evolution  is 
of  infinite  complexity  and  indefinite  duration;  law  is 
no  more  than  its  protective  armament.  The  genera- 


CONCLUSION  245 

tion  that  went  before  believed  that  its  system  of  law, 
metaphysical,  individualistic,  and  subjective,  was 
definite  and  final.  Let  us  not  commit  a  like  mistake. 
Our  own  system,  realist,  social,  and  objective,  repre- 
sents but  a  moment  of  history;  and  before  it  has  been 
finally  builded  the  keen  observer  will  note  its  trans- 
mutation into  a  newer  code.  The  generation  that  is 
to  come  will  be  happy  in  so  far  as  it  is  able,  in  better 
fashion  than  ourselves,  to  achieve  freedom  from  its 
dogmas  and  its  prejudices. 
BORDEAUX, 
Jan.  1 


THE  END 


^ 

"7£t#7>^ 

j'l^x'l 


BIBLIOGRAPHICAL  NOTE 

I.    M.  Duguit  has  written  the  following  treatises: 

i.     La  Separation  des  Pouvoirs  et  L' Assemble  Constitu- 

ante.     Paris,  1893. 
ii.     L'Etat:    Le  Droit  Objectif  et  La  Loi  PositiL     Paris, 

1901. 

iii.  L'Etat:  Les  Gouvernants  et  Les  Agents.  Paris,  1903. 
iv.  Traite  de  Droit  Constitutionnel.  2  vols.  Paris,  1911. 
v.  Manuel  de  Droit  Constitutionnel.  (3rd  edition..) 

Paris,  1918. 
vi.     Le  Droit  Social,  Le  Droit  Individuel  et  L'Etat.     (2nd 

edition.)     Paris,  1911. 
—  vii.     Les  Transformations  Generates  du  Droit  Prive.    Paris, 

1912. 
L,  viii.     Les  Transformations  du  Droit  Public.     Paris,  1913. 

The  second  has  been  translated  in  part  in  Modern  French 
Public  Law  (1917),  in  the  Legal  Philosophy  Series  edited 
by  Professor  J.  H.  Wigmore ;  the  seventh  in  the  Evolution  of 
Private  Law  in  the  Nineteenth  Century  (1918),  in  the  Con- 
tinental Legal  Historical  series,  also  edited  by  Prof.  Wigmore. 

II.    The  following  are  M.  Duguit's  chief  articles: 

i.     Le  Droit  Constitutionnel  et  La  Sociologie. 

Revue  Internationale  de  FEnseignement  (1889),  Vol. 

28,  p.  495. 
ii.     L'Election  des  Senateurs. 

Revue  Politique  et  Parlementaire  (1895),  p.  61. 
iii.     L'Acte  Administratif  et  L'Acte  Jurisdictionnel. 

Revue  de  Droit  Public  (1906),  Vol.  XXIII,  p.  413. 
iv.     De  la  situation  des  particuliers  a  1'egard  des  services 
publics. 

Revue  de  Droit  Public  (1907^  Vol.  XXIV,  p.  414. 
v.     De  la  responsabilite  pouvant  naitre  a  1'occasion  de  la 
loi. 

Revue  de  Droit  Public  (1910),  Vol.  XXVII,  p.  637, 
247 


BIBLIOGRAPHICAL    NOTE 

vi.     La  Representation  syndical  au  Parlement. 

Revue  Politique  et  Parlementaire   (1911),  Vol.  69, 

p.  28. 
vii.     Law  and  the  State. 

Harvard  Law  Review  (1917-8),  Vol.  XXXI,  p.  1. 
viii.     Collective  Agreements. 

Yale  Law  Journal,  April,  1918. 

The  following  are  among  the  more  important  discussions  of 
M.  Duguit's  work: 

J.  Berthelemy:  Revue  de  Droit  Public  (1908),  Vol.  XXV,  p. 

152. 

W.  Jethro  Brown:  Law  Quarterly  Review  (July,  1916),  p.  168. 
J.  Charmont:    La  Renaissance  du  Droit  Naturel  (1910),  pp. 

190-9. 
A.  Esmein:    Elements  du  Droit  Constitutionnel  (6th  edition), 

p.  32. 
J.  Faurey:    Revue  Generate  du  Droit  (1914),  Vol.  XXXVIII, 

p.  260. 
F.  Geny:    Revue  Critique  (1901),  N.  S.  Vol.  XXX,  p.  502. 

F.  Geny:    Science  et  Technique  en  Droit  Prive  (1915),  Vol. 

II,  p.  191. 

M.  Hauriou:    Les  Idees  de  M.  Duguit  (1911). 
L.  Michoud:    Theorie  de  la  Personnalite  Morale  (1906),  Vol. 

I,  p.  44. 

H.  Nezard:    Revue  Generate  de  I' Administration  (1912),  Vol. 

II,  p.  129. 

G.  Richard:    Revue  Philosophique  (1912),  Vol.  73,  p.  225. 
R.  Saleilles:    Revue.     Montalembert  (1909),  p.  256. 

Harvard  University,  1919. 


TTNIVERSl/         v  CALL 

RETURN     CIRCULATION  DEPARTMENT 

TO—  ^      202  Main  Library 

LOAN  PERIOD  1 
HOME  USE 

2 

3 

4 

5 

6 

ALL  BOOKS  MAY  BE  RECALLED  AFTER  7  DAYS 

Renewals  and  Recharges  may  be  made  4  days  prior  to  the  due  date. 

Books  may  be  Renewed  by  calling     642-3405. 

DUE  AS  STAMPED  BELOW 


JUL  12  198 


AUG 11 1! 


AUTO. 


APR  1  1 


FORM  NO.  DD6, 


UNIVERSITY  OF  CALIFORNIA,  BERKELEY 
BERKELEY,  CA  94720 


(Hilt)Uii81U  J4/DJ3 


Berkeley 


XB 


759  JF 


Dei 


GENERAL  LIBRARY -U.C.  BERKELEY 


8000803727 


